lUfllrclni
XV
International Library of Psychology
Philosophy and
Scientific
Method
Crime and Custom Savage Society
in
International Library of Psychology
Philosophy and Scientific Method
GENERAL EDITOR Philosophical Studies
.
The Misuse of Mind Conflict and Dream
College, Cambridge). by G. E. Moorf, Litt.D. by Karin Stephen
by W. by W. by W. by W.
Psychology and Politics Medicine, Magic, and Religion
Psychology and Ethnology Tractatus Logico-Philosophicus The Measurement of Emotion Psychological Types
H. H. H. H.
Rivers, Rivers, Rivers, Rivers,
R. R. R. R.
F.R.S. F.R.S. F.R.S. F.R.S.
by L. Wittgenstein . by W. Whately Smith by C. G. Jung, M.D., LL.D. by A. D. Ritchie by C. D. Broad, Litt.D.
Method Thought Mind and its Place in Nature The Meaning of Meaning Character and the Unconscious Scientific Scientific
OGDEN, M.A.
C. K.
{Magdalene
.
by C. K.
Individual Psychology Chance, Love, and Logic Speculations (Preface by Jacob Epstein) The Psychology of Reasoning Biological Memory The Philosophy of Music The Philosophy of " as if " . The Nature of Laughter The Nature of Intelligence Telepathy and Clairvoyance The Growth of the Mind The Mentality of Apes Psychology of Religious Mysticism The Psychology of a Musical Prodigy Principles of Literary Criticism Metaphysical Foundations of Science Colour-Blindness .
.
.
.
.
....
Physique and Character Psychology of Emotion Problems of Personality Psyche Psychology of Time The History of Materialism Emotion and Insanity Personality Educational Psychology .
..... ..... .
The Language and Thought of the Child Comparative Philosophy Conversion Thought and the Brain Sex and Repression in Savage Society Crime and Custom in Savage Society Theoretical Biology .
.
by C. D. Broad, Litt.D. I. A. Richards
Ogden and
by J. H. van der Hoop . by Alfred Adler by C. S. Peirce by T. E. Hulme by Eugenio Rignano by Eugenio Rignano . by W.Pole, F.R.S. . by H. Vaihinger by J. C. Gregory . by L. L. Thurstone by R. Tischner by K. Koffka by W. Kohler by J. H. Leuba by G. Revesz by I. A. Richards by E. A. Burtt, Ph.D. by M. Collins, Ph.D. by Ernst Kretschmer by J. T. MacCurdy, M.D. in honour of Morton Prince by E. Rohde . by M. Sturt by F. A. Lange by S. Thalbitzer by R. G. Gordon, M.D. by Charles Fox by J. Piaget by P. Masson-Oursel by S. de Sanctis by H. Pieron t>y B. Malinowskt, D.Sc. by B. Malinowskt, D.Sc. by J. von Uexkull .
.
.
In Preparation
The Psychology of Character The Analysis of Matter The Laws of Feeling Statistical Method in Economics The Primitive Mind Colour-Harmony The Theory of Hearing Supernormal Physical Phenomena The Integrative Action of the Mind Plato's Theory of Knowledge .
....
.
Principles of Psychopathology
Theory of Medical Diagnosis Language as Symbol and as Expression A History of Ethical Theory The Philosophy of Law .
.
Psychology of Musical Genius
Modern Theories of Perception
by A. A. Roback Bertrand Russell, F.R.S. by F. Paulhan by P. Sargant Florence .
by
by P. Radin, Ph.D. by James Wood by H. Hartridge, D.Sc. by E. J. Dingwall by E. Miller by F. M. Cornford by William Brown, M.D., D Sc. by F. G. Crookshank, M.D. by E. Sapir by M. Ginsberg, D.Lit. by A. L. Goodhart by G. Revesz by W. J. H. Sprott by G. FI. Hardy, F.R.S. by E. von Hartmann by G. Elliot Smith, F.R.S. by Edward J. Dent by Liang Che-Chiao .
Mathematics for Philosophers
The Philosophy of the Unconscious The Psychology of Myths The Psychology of Music Development of Chinese Thought .
Crime and Custom in Savage Society
By
BRONISLAW MALINOWSKI, Author
D.Sc.
of Argonauts of the Western Pacific
m NEW YORK HARCOURT, BRACE & COMPANY, LONDON: KEGAN PAUL, TRENCH, TRUBNER & 1926
INC. CO.,
LTD.
Y?3
Printed in Great Britain by Stephen Austin &• Sons, Ltd., Hertford.
To
SIR RICHARD GREGORY, Editor of Nature
D.Sc.
CONTENTS Preface
...... .....
Introduction
PART
The Automatic Submission
The
Vj
Force
Law,
.
.
Self-interest,
The Rules
VII.
The Law The
of
Law
Principle
Reciprocity
The
as
Rules
of
Classified
XL An XII. XIII.
.
and
Social
.
Ambition
in Religious Acts
.
28 33 35
.
-39
.
..... ..... Basis
Custom
Social
of
Defined
Anthropological Definition of
Specific Legal
24
Give-and-take
of
the
17
.22
.
of Marriage
Structure
X.
.
.
Pervading Tribal Life IX.
9
Economic
of
Reciprocity and Dual Organization
VI.
VIII.
Custom
...
Communism.
Binding
Obligations
IV.
to
Melanesian Economics and the Theory of Primitive
III.
i
I
and the Real Problem II.
ix
Law and Order
Primitive I.
PAGE
Arrangements
Conclusion and Forecast
and
Law
... .
46
.
50
55 60 63
CONTENTS
viii
PART
II
Primitive Crime and its Punishment PAGE
.....
71
Sorcery and Suicide as Legal Influences
85
The Law
I.
of II.
in
Breach and the Restoration
Order
Law
III.
Systems of
IV.
The Factors
in Conflict Social
of
100
.
.
Cohesion in a
........ Primitive Tribe
Index
LIST
OF
.
.
.112
.
130
ILLUSTRATIONS
PLATE I.
Fishing Canoes on the Lagoon
Front.
.
II.
Bundles of Fish taken over from the
III.
Obligatory Display of Grief in Ritual
Fishermen by the Inland Natives
.....
Wailing IV.
A
Conical front of
made wooden measures Heap of Yams is put up in a Chief's Storehouse by his .
wife's relations
VI.
22
34
Ceremonial Offering of Yams, carried in specially
V.
.
A
....
58
76
ceremonial act of the Kula before the Chief's personal
The
hut at Omarakana.
Ethnographer's
background
.
.
tent .
in .
the
.104
PREFACE r
~T HE modern anthropological explorer, who goes ,
into the field fully trained in theory, charged
with problems, interests, and maybe preconceptions, is
neither able nor well-advised to keep his observa-
tions within the limits of concrete facts
data. of
He
bound
is
to
difficulties,
to receive illumination
settle
general perspective. arrive at
mind
some
solve
to
principle,
of
fundamental
as to whether the primitive
from our own or
whether the savage
his
on matters
many moot points as regards He is bound, for example, to
some conclusions
differs
and detailed
lives
is
essentially similar
;
constantly in a world of
supernatural powers and perils, or on the contrary,
has his lucid intervals as often as any one of us
whether
and can
clan-solidarity
universal
be
as
force,
self-seeking
is
such
an
whether
or
and
;
overwhelming the
self-interested
heathen as
any
Christian.
In
the
writing
anthropologist
somewhat
is
up
of
his
results
the
modern
naturally tempted to add his wider,
diffused
and intangible experiences to
his
—
PREFACE
x
descriptions of definite fact
ground of a general theory little
book
lapse
for
—
be
it
savages.
anthropological
from
born
jurisprudence,
with
contact
actual
should also point out that in this work
and generalizations stand out
reflections
the descriptive paragraphs.
hypothetical
from
clearly
Last, not least, I should
my theory is
like to claim that
or
worker's yielding
In extenuation of this lapse
in
theory I
field
This
should like to urge the great need
I
more theory
especially
of primitive culture.
the outcome of a
is
to such temptation. if
to present the details
;
and organization against the back-
of custom, belief,
not
made
but
reconstruction
of conjecture
simply an
is
attempt at formulating the problem, at introducing precise
concepts
and
clear
definitions
the
into
subject.
The circumstances under which being have
this thesis
also contributed towards
The material was
first
came
into
present form.
its
prepared and the conclusions
framed in response to an invitation from the Royal Institution of Great Britain, before which a paper
was read (on the a
Primitive
" Forces
Community
13th February,
1925.
of
")
Law and
Order in
Friday
evening,
on
As often happens,
myself with more material on
my
I
hands and
found
many
more conclusions framed than could be included in an hour's address. privilege
of
Some
of these
publishing in Nature
I
have had the
(see
Supplement,
PREFACE February,
6th
The
1925).
and
1926,
full
version
xi
15th
article,
August,
contained in this
is
little
book. I
wish to express
my
thanks to the Council of the
Royal Institution for the kind loan of blocks and the permission
them.
reproduce
to
Gregory, the Editor of Nature,
me
allowing
to
In
I
received from
the
him
preparation
Sir
am
indebted for
Richard
the articles mentioned.
reprint
owe him much, moreover, ment
I
To
of
for the help
my
in
this
and encourage-
earlier
work.
volume
Raymond
competent assistance from Mr.
I
received
I
Firth,
who
is
carrying on research work at the London School of
Economics in the Department
of Ethnology.
I
was
able to secure his help through a grant from the Laura
The Board
Spelman Rockefeller Memorial. institution has of late devoted
some
of this
special attention
to the furtherance of anthropology, as a part of its interest in
the development of the social sciences.
The study
of the rapidly vanishing savage races is
one
of
those
duties
of
—now
civilization
engaged in the destruction of primitive so far has been lamentably neglected.
life
actively
—which
The task
is
not only of high scientific and cultural importance,
but also not devoid of considerable practical value, in that it can help the white
and
" improve "
the
results to the latter.
man
native
to govern, exploit,
with
less
pernicious '
PREFACE
xii
The Laura Spelman Rockefeller Memorial, through its
enlightened interest in anthropology as a branch
of the social studies, will earn a
deep gratitude from
present and future humanists in erecting a lasting
monument
to the noble
woman
in
whose memory
has been founded. B. M.
New York
City.
March, 1926.
it
INTRODUCTION A NTHROPOLOGY is still to most laymen and to many specialists mainly an object of antiquarian Savagery
interest. cruel,
and
is still
synonymous with absurd,
and eccentric customs, with quaint superstitions Sexual licence,
revolting practices.
head-hunting, couvade,
infanticide,
cannibalism and what not,
have made anthropology attractive reading to many, a subject of curiosity rather than of serious scholar-
There
ship to others.
are,
however, certain aspects of
anthropology which are of a genuine in that they
scientific character,
do not lead us beyond empirical fact into
realms of uncontrollable conjecture, in that they widen
our knowledge of
human
nature,
a direct practical application.
I
and are capable of
mean such a
for example, as primitive economics,
subject,
important for our
knowledge of man's economic disposition and of value to those
who wish
countries,
to develop the resources of tropical
employ indigenous labour and trade with
the natives.
Or
again, a subject such as the
com-
parative study of the mental processes of savages, a line of research
which has already proved
fertile
to
psychology and might be made useful to those engaged in educating or morally improving the native. Last, but
INTRODUCTION
2
not
there
least,
is
the subject of primitive law, the
study of the various forces which make for order, uniformity and cohesion in a savage tribe. The knowledge of these forces should have formed the foundation of anthropological theories of primitive organization
and should have yielded the guiding Colonial
legislation
principles
A
and administration.
fuller
knowledge of the so-called savages has revealed " beastly devices of
law and of
and
social needs of
human
Ye
" as the product of firm
Ye heathen
strict tradition,
of
due to
biological,
mental
nature, rather than as the
and unfettered
outcome
of unbridled passion
Law and
order pervade the tribal usages of primitive
races,
they govern as
existence, life,
well
all
the
as
humdrum
the
excess.
course of daily
leading
acts
of
public
whether these be quaint and sensational or
important and venerable. anthropology,
primitive
Yet
of
jurisprudence
in recent times the scantiest
and the
branches of
all
has
received
least satisfactory
treatment.
Anthropology has not always been so indifferent about savage justice and the methods of tration as
there
it is
was a
at present.
About
Bachofen,
adminis-
ago
positive epidemic of research into primitive
law, especially on the Continent,
Germany.
its
half a century
It
is
Post,
more
particularly in
enough to mention the names Bernhoft,
Kohler
and
the
of
other
writers grouped round the Zeitschrift fur vergleichende
INTRODUCTION
3
Rechtswissenschaft to remind the sociologist of the scope,
volume and quality
of the
work done by them.
This
work, however, was heavily handicapped. The writers
had
to
upon the data
rely
ethnographers
—modern
the early amateur
of
field-work
the
of
trained
done with method, purpose and knowledge
specialist,
was
of the problems,
at that time not yet in existence.
In an abstract and complex subject such as primitive law, amateur observations are on the whole useless^
The all
early
German students
of savage
law again were
and one committed to the hypothesis
promiscuity British
'
and
'
group-marriage
contemporary,
handicapped by
his
'
primitive as
their
Maine,
was
just
',
Henry
Sir
too
of
narrow adhesion
to
the
patriarchal scheme. Most of these continental efforts in
anthropological jurisprudence were fact,
wasted upon
its
descriptions
and
The myth
shadow on it
group- justice
', '
and
primitive
group-marriage
'
arguments and
'
group-responsibility ',
and communism '
dogma of the absence among savages.
all
', ',
of individual
these ideas was the assumption that
societies
the individual
dominated by the group tribe
'
liabilities
Underlying in
of
their
all
group-property
in short, with the
rights
—in
infected their juridical constructions
with the kindred concepts of '
to
—the task of proving that Morgan's
theories were correct.
was casting
directed
—the horde,
is
completely
the clan or the
—that he obeys the commands of his community,
—
INTRODUCTION
4 its traditions,
public opinion,
its
its
decrees, with a
slavish, fascinated, passive obedience. This assumption,
which gives the leading tone to certain modern
upon the mentality and
cussions
dis-
sociality of savages,
survives in the French school of Durkheim, in
still
most
and German works and
American
some
in
English writings.
Thus handicapped by less
insufficient material
and base-
assumptions, the early school of anthropological
jurisprudence was driven into an impasse of
and
In consequence
sterile constructions.
artificial
proved
it
incapable of real vitality, and the whole interest in the subject
heavily
subsided
—
slumped
—in
fact,
after its first short-lived
almost
boom. One or two
important books on the subject appeared inquiries
the
into
beginnings
—Steinmetz's punishment,
of
Durkheim's analysis of early criminal and but, on the whole, the inspiring that
first
the
law little
most modern anthropologists, both
standard
Anthropology,
civil
impetus has proved so
theory and in field-work, ignore In
entirely
'
law
manual '
appears
Notes
in
its very existence.
and
neither
Queries
the
in
on
index
nor in the table of contents, and the few lines devoted to
it
under the heading of " Government
excellent as they are, do not correspond in
the importance of the subject. Dr.
:
Politics ",
any way
to
In the book of the late
Rivers on Social Organization the problem of
primitive law
is
discussed only incidentally, and, as
we
INTRODUCTION shall see, it is rather
than included in
it
5
banished from primitive sociology
by the author's
brief reference.
This lacuna in modern anthropology
any oversight
of primitive legality,
to its over-emphasis.
yet
true
that
primitive law just because I will
add
it
due, not to
but on the contrary
Paradoxical as
present-day
is
it
sounds,
anthropology
it
is
neglects
has an exaggerated, and
at once, a mistaken idea of its perfection.
N
PART PRIMITIVE
I
LAW AND ORDER
—
THE AUTOMATIC SUBMISSION TO CUSTOM AND THE REAL PROBLEM
TI 7HEN
we come
why
to inquire
rules of conduct,
however hard, irksome, or unwelcome, obeyed
what
;
makes private
economic
life,
operation, public events run so smoothly short, consist the forces of
the answer
is
it
;
law and order in savagery
it is
far
from
fitfully
and
he follows what
loosely,
So
satisfactory.
could be maintained that the
really savage, that
but
co-
of what, in
not easy to give, and what anthropology
has had to say about long as
are
savage
'
little
'
is
law he has
the problem did not exist.
When the question became actual, when it became plain that hypertrophy of rules rather than lawlessness characteristic
of
primitive
life,
veered round to the opposite
point
was made not only into a model but
it
his
tribal
rules
and
the
:
fetters,
way he
glides, so to speak,
savage
in submitting
he follows the
natural trend of his spontaneous impulses this
is
opinion
of the law-abiding
became an axiom that
citizen,
to
all
scientific
;
that in
along the line of least
resistance.
The savage
— so runs to-day's verdict
of
competent
CRIME AND CUSTOM
io
anthropologists
—has a deep reverence for tradition and
custom, an automatic submission to their biddings.
He 1
them
obeys
spontaneously
'unwittingly',
'slavishly',
through
',
mental inertia
'
combined
',
with the fear of public opinion or of supernatural
punishment sentiment
or again through a
;
not group-instinct
if
following in a recent book
:
"
'
pervading group-
Thus we
'.
The savage
find the
from
far
is
being the free and unfettered creature of Rousseau's
On
imagination.
the contrary, he
hemmed
is
every side by the customs of his people, he in the chains of
but in his
in his industry, his art
all
this
:
in short, every aspect of his
we might
whether the
we
and
Law,
agree, except that
" chains
identical or even similar in art in industry,
in religion.
of
and
(the savage) as a
contrary to
human
seems
tradition "
are
in social relations,
But when, immediately,
matter of course
—we
p. 138). it
are told that " these fetters are accepted
break forth "
bound
religion, his medicine,
life" (E. Sidney Hartland in Primitive
doubtful
on
immemorial tradition not merely in
his social relations,
With
is
in
must enter a
;
by him
he never seeks to
protest.
Is it
not
nature to accept any constraint
as a matter of course,
and does man, whether
civilized
or savage, ever carry out unpleasant, burdensome, cruel regulations
and taboos without being compelled
to
?
And compelled by some force or motive which he cannot resist
?
n
LAW AND ORDER Yet
automatic acquiescence, this instinctive
this
submission of every
member
the fundamental axiom into primitive order
of the tribe to its laws, is
laid at the basis of the inquiry
and adherence to
Thus
rule.
another foremost authority on the subject, the late Dr. Rivers, speaks in the book already mentioned of
an " unwitting or intuitive method life ",
which
is,
with primitive communism/ "
Among
of regulating social
according to him, " closely connected
And he
'
proceeds to
tell
such a people as the Melanesians there
us
:
is
a group sentiment which makes unnecessary any
definite social
machinery
for the exertion of authority,
same manner
in just the
harmonious working
of
as
it
makes
possible the
communal ownership, and
insures the peaceful character of a communistic system of sexual relations " (Social Organization, p. 169).
Thus here again we are assured that or
'
intuitive
methods
some mysterious order,
'
'
',
unwitting
instinctive submission
group-sentiment
communism and
'
sexual
'
'
'
and
account for law,
promiscuity
alike
!
This sounds altogether like a Bolshevik paradise, but is
certainly not correct
societies,
A
which
I
know
similar idea
sociologist,
in
reference to Melanesian
at first hand.
expressed by a third writer,
is
who has
a
contributed more towards our
understanding of the organization of savages from the point of view of mental and social evolution than
perhaps
any one
living
anthropologist.
Professor
CRIME AND CUSTOM
12
Hobhouse, speaking of the tribes on a very low of
culture,
have
customs,
their
which
are
binding by their members, but
body
of rules enforced
personal
of
level
affirms that " such societies, of course,
of
ties
an institution
if
doubtless
as
felt
we mean by law a
by an authority independent and
kinship
such
friendship,
not compatible with their social
is
organization " {Morals in Evolution, 1915, p. 73). Here we have to question the phrase " felt as binding "
and ask whether problem instead to
some
rules
it
does not cover and hide the real
of solving
at
least,
Is there not,
it.
with regard
a binding mechanism,
not
perhaps enforced by any central authority, but backed
up by
real motives, interests
Can severe some and '
feeling
this
'
and complex sentiments
prohibitions, onerous duties, very burden-
galling liabilities, be
We
?
invaluable
simply takes definition of
should like
mental
made binding by a mere to know more about
attitude,
it for granted.
but
the
Again, the
author
minimum
law as the " body of rules enforced by an
authority independent of personal ties to be too narrow
relevant elements.
",
seems to
me
and not to lay the emphasis on the There are among the
many norms
of conduct in savage societies certain rules
as
?
regarded
compulsory obligations of one individual or group
towards another individual or group. of such obligations is usually
the measure of
its
The
fulfilment
rewarded according to
perfection, while non-compliance
is
LAW AND ORDER visited
13
upon the remiss agent. Taking our stand upon view of law and inquiring
comprehensive
such a
make it obligatory, much more satisfactory
into the nature of the forces which
we
be able to arrive at
shall
results than
if
we were
to discuss questions of authority,
government and punishment.
To take another
representative opinion, that of one
United
of the highest anthropological authorities in the
States,
we
view
" Generally speaking, the unwritten laws of
:
find Dr.
Lowie expressing a very similar
customary usage are obeyed our
written
or
codes,
spontaneously."
To compare
x
more
far
willingly than
they
rather
the
'
obeyed
are
willingness
obedience to law of an Australian savage with a
Yorker,
have to be taken very
until they lose all meaning.
can work in an '
willingly
coercion
'
and
'
The
manner
efficient
and the
in
New
Melanesian with a nonconformist
or of a
and
citizen of Glasgow, is a perilous proceeding
results
'
'
generally
fact
average man, whether
'
that no society
unless laws are obeyed
The
spontaneously \
fear of
is
its
indeed,
'
threat
of
punishment do not touch the savage
'
or
'
civilized
',
while,
on the other hand, they are indispensable with regard to certain turbulent or criminal elements in society.
Again, there
is
a
number
either
of laws, taboos
and
human culture which weigh heavily demand great self-sacrifice, and are
obligations in every
on every 1
citizen,
Primitive Society, Chap, on " Justice
", p.
387, English edition.
CRIME AND CUSTOM
14
obeyed
sentimental
moral,
for
any
reasons, but without
'
or
matter-of-fact
spontaneity \
It would be easy to multiply statements and to
show that the dogma
of the automatic submission to
custom dominates the whole inquiry into primitive law. In
all fairness,
however,
it
must be
any
stressed that
shortcomings in theory or observation are due to the real difficulties
so
and
pitfalls
which
of
this subject is
full.
The extreme in the
difficulty of the
problem
lies, I
think,
very complex and diffuse nature of the forces
Accustomed as we
which constitute primitive law.
are to look for a definite machinery of enactment,
administration, for
something analogous in
failing to find there
conclude that
we cast round a savage community and,
and enforcement
all
any
law
is
of law,
similar
arrangements,
obeyed by
propensity of the savage to obey
we
this mysterious
it.
Anthropology seems here to be faced by a similar difficulty
"
forces of courts,
the
as
minimum
one
overcome
definition of religion ".
by Tylor
By
in
his
denning the
law in terms of central authority, codes,
and constables, we must come to the conclusion
that law needs no enforcement in a primitive com-
munity and
is
followed spontaneously. That the savage
does break the law sometimes, though rarely and occasionally, has been recorded
into account
by
by observers and taken
builders of anthropological theory,
who
LAW AND ORDER
15
have always maintained that criminal law
is
the only
law of savages. But that his observance of the rules of
law under the normal conditions, when
and not
best
defied, is at
subject to evasions
that
;
it is
followed
and
partial, conditional, it is
not enforced by any
wholesale motive like fear of punishment, or a general
submission to
all
tradition,
but by very complex
psychological and social inducements state of affairs
all
this
is
a
which modern anthropology has so In the following account
far completely overlooked. I shall
—
try to establish
it
for
north-west Melanesia, and
one ethnographic province, I
show reasons why
shall
observations of similar nature to those carried out
by
myself should be extended to other societies in order to give us
We
shall
some idea about
their legal conditions.
approach our facts with a very
wide conception of the problem before for
'
law
'
and
legal forces,
discover and analyse
upon
all
we
elastic
and
In looking
us.
shall try
merely to
the rules conceived and acted
as binding obligations, to find out the nature of
the binding forces, and to classify the rules according to the
manner in which they
are
made
valid.
We shall see
that
by an inductive examination
out
without any preconceived idea or ready-made
definition,
we
shall
of
facts,
carried
be enabled to arrive at a
factory classification of the norms and rules
satis-
of
a
primitive community, at a clear distinction of primitive
law from other forms of custom, and at a new, dvnamic
CRIME AND CUSTOM
16
conception of the social organization of savages. Since the facts of primitive law described in this article have
been recorded in Melanesia, 1
communism
sentiment obedience to
and
',
',
and
'
'
all
the
dispose
they stand for
—may
we of
of
',
and
',
conclusions will
classical
promiscuity
clan-solidarity
the
—which
draw
'
'
'
of
group-
spontaneous
shall
these
area
be
able
catch-words
be of special interest.
II
MELANESIAN ECONOMICS AND THE THEORY OF PRIMITIVE COMMUNISM
HPHE
Trobriand Archipelago, which
the Melanesian north-east of
community
is
teems with
New Guinea and consists
fish,
by
referred to, lies to the of a
coral islands, surrounding a wide lagoon.
the land are covered with
inhabited
fertile soil
group of
The
flat
plains of
and the lagoon
while both afford easy means of inter-
communication to the inhabitants.
Accordingly, the
islands support a dense population mainly engaged in
agriculture
and
crafts
Like
all
their time
and
fishing,
but expert also in various arts
and keen on trade and exchange. coral islanders, they spend a great deal of
on the central lagoon.
On
a calm day
alive with canoes carrying people or produce, or
in one of their manifold systems of fishing. ficial
it is
engaged
A
super-
acquaintance with these pursuits might leave one
with an impression of arbitrary disorder, anarchy, complete lack of system.
tions
would soon
Patient and painstaking observa-
reveal, however, not only that the
natives have definite technical systems of catching fish
and complex economic arrangements, but
also that
CRIME AND CUSTOM
18
they have a close organization in their working teams,
and a fixed
division of social functions.
Thus, within each canoe is
one
it
would be found that there
man who is its rightful owner, while the rest act as men, who as a rule belong to the
All these
a crew.
same sub-clan, are bound to each other and fellow-villagers
by mutual
community go out
He must
canoe.
do
tion to him. clear,
task.
fishing, the
;
when the whole
owner cannot refuse
go out himself or
The crew
instead.
it
obligations
to their
let
some one
his else
are equally under an obliga-
For reasons which
will presently
man must fill his place and Each man also receives his fair
each
distribution of the catch as
stand by his share in the
an equivalent of
Thus the ownership and use
become
his service.
of the canoe consist of
a series of definite obligations and duties uniting a group of people into a
What makes
working team. the conditions even more complex
that the owners and the
members
of the crew are
entitled to surrender their privileges to relatives
and
friends.
This
for a consideration, for a
who all
does not grasp
all
is
is
any one
of their
often done, but always
repayment.
To an observer
the details, and does not follow
the intricacies of each transaction, such a state of
affairs looks
appears to
very
much
be owned
like
jointly
communism
:
the canoe
by a group and used
indis-
criminately by the whole community. Dr. Rivers in fact
tells
us that " one of the objects of
"
LAW AND ORDER Melanesian culture which subject of
is
usually,
19
not always, the
if
common ownership is the canoe", and further
on, in reference to this statement, he speaks about " the
great extent to which communistic sentiments concern-
dominate the people
property
ing
Melanesia
of
106 and 107).
{Social Organization, pp.
In another
writer speaks about " the socialistic or
work, the same
even communistic behaviour of such societies as those of
Melanesia "
and
87).
{Psychology
and
Politics,
86
pp.
Nothing could be more mistaken than such There
generalizations.
is
a
strict
distinction
and
one and this makes
definition in the rights of every
We
ownership anything but communistic.
have in
Melanesia a compound and complex system of holding
way partakes of the nature communism A modern joint-
property, which in no of
*
socialism
stock '
or
'
company
'
'.
might just
communistic enterprise \
well
as
be
As a matter
called
of fact,
a
any
descriptions of a savage institution in terms such as
'communism', 'capitalism' or 'joint-stock company', borrowed from present-day economic conditions or political controversy,
The only
cannot but be misleading.
correct proceeding
to describe the legal
is
state of affairs in terms of concrete fact.
ownership of a Trobriand fishing canoe the
manner
regarded it
in
by
and enjoy
which the object the its
group
of
possession.
is
Thus, the defined
by
is
made, used and
men
who produced
The master
of
the
CRIME AND CUSTOM
20
who acts at the same time as the head of the team
canoe,
and as the
fishing magician of the canoe, has first of all
new
to finance the building of a is
worn
and he has to maintain
out,
when
craft,
the old one
in good repair,
it
helped in this by the rest of his crew.
In this they
remain under mutual obligations to one another to appear each at his post, while every canoe
come when a communal
is
bound
to
been arranged.
fishing has
In using the craft, every joint owner has a right to a certain place in
it
and to certain
benefits associated with
duties, privileges,
He
it.
and
has his post in the
canoe, he has his task to perform, and enjoys the corre-
sponding 1
title,
either of
keeper of the nets
position
and
title
',
master
'
or
'
'
or
'
steersman
watcher for
action of rank, age, and personal ability. also has its place in the fleet
we
fishing.
and
its
'.
or
His
by the combined
are determined
manoeuvres of joint
fish
',
Each canoe
part to play in the
Thus on a
close inquiry
discover in this pursuit a definite system of division
of functions
and a
rigid
into which a sense of
system of mutual obligations,
duty and the recognition
of the
need of co-operation enter side by side with a realization of self-interest, privileges ship, therefore, 1
communism
to
'
joint-stock
prise It
'
is
',
and
benefits.
Owner-
can be defined neither by such words as nor
'
individualism
company
'
',
system or
nor by reference '
personal enter-
but by the concrete facts and conditions of use.
the
sum
of duties, privileges
and mutualities
LAW AND ORDER which bind the
joint
21
owners to the object and to each
other.
Thus, in connexion with the attracted our attention
by
object
which
—the native canoe—we are met
law, order, definite privileges
system of obligations.
first
and a well-developed
Ill
THE BINDING FORCE OF ECONOMIC OBLIGATIONS
HPO
enter
more deeply
into the nature of these bind-
ing obligations, let us follow the fishermen to the shore. Let us see
catch.
what happens with the
division of the
In most cases only a small proportion of
remains with the
As a
villagers.
rule
we should
it
find a
number of people from some inland community waiting on the shore. They receive the bundles of fishermen and carry them home, often
fish
from the
many
away, running so as to arrive while
it
Here again we should find a system
mutual
of
is
still
miles fresh.
services
and obligations based on a standing arrangement between two village communities.
The inland
supplies the fishermen with vegetables
community repays with
fish.
primarily an economic one.
It
But there
is
the coastal
This arrangement
done according to an
also the legal side, a
system of mutual obligations which forces the
man
is
has also a ceremonial
aspect, for the exchange has to be
elaborate ritual.
:
village
fisher-
to repay whenever he has received a gift from his
inland partner, and vice versa. refuse,
neither
should delay.
may
Neither partner can
stint in his return gift,
neither
pq
LAW AND ORDER What The
is
the motive force behind these obligations
coastal
and inland
upon each other
reply
23
villages respectively
for the
supply of food.
?
have to
On
the
coast the natives never have enough vegetable food,
while inland the people are always in need of
Moreover, custom will have
it
fish.
that on the coast
all
the big ceremonial displays and distributions of food,
which form an extremely important aspect of the public life
of these
specially large
natives,
must be made with certain
and fine varieties of vegetable food, which
grow only on the
There, on the
fertile plains inland.
other hand, the proper substance for a distribution and feast
is fish.
Thus
to all other reasons of value of the
respectively rarer food, there
is
added an
culturally created dependence of the
two
artificially,
districts
upon
one another. So that on the whole each community very
much
in
need of
its
partners.
If at
is
any time pre-
viously these have been guilty of neglect, however,
they know that they will be in one
weapon This tables.
way
Each community
severely penalized.
for the enforcement of its rights
is
or another
has, therefore, a :
reciprocity.
not limited to the exchange of fish for vege-
As a
rule,
two communities
rely
upon each
other in other forms of trading and other mutual services as well.
made
Thus every chain
of
reciprocity
is
the more binding by being part and parcel of a
whole system of mutualities.
'
IV
RECIPROCITY AND DUAL ORGANIZATION T HAVE
found only one writer who
fully appreciates
the importance of reciprocity in primitive social
The leading German
organization. Prof.
Thurnwald
of
Berlin,
anthropologist,
" die
clearly recognizes
Symmetric des Gesellschaftsbaus " and the corresponding " Symmetric von Handlungen ", 1 Throughout his
monograph,
which
perhaps
is
the
best
of the social organization of a savage
Prof.
Thurnwald
social
structure
Its
shows
and
how
rather than of
symmetry
the
is
of life.
not, however,
who seems to be aware foundation in human feeling
by the
of its psychological
extant,
of actions pervades native
importance as a legal binding form
explicitly stated
tribe
account
writer,
'
function in safeguarding the
its social
continuity and adequacy of mutual services.
The old about the
theories of tribal dichotomy, the discussions '
origins
'
of
'
phratries
[
or
\
moieties
'
and
"Die Symmetric von Handlungen aber nennen wir das Prinzip Vergeltung. Dieses liegt tief verwurzelt im menschlichen Empfinden als adaquate Reaktion und ihm kam von jeher die grosste Bedeutung im sozialen Leben zu " {Die Gemeinde der 1
der
—
Bdnaro, Stuttgart, 1921,
—
p. 10).
LAW AND ORDER
25
of the duality in tribal subdivisions, never entered into
the inner or differential foundations of the external
phenomenon 1
of halving.
dual organization
'
The recent treatment
by the
late Dr. Rivers
of the
and
his
school suffers badly from the defect of looking for
phenomenon
recondite causes instead of analysing the
The dual
itself. '
fusion
nor
'
cataclysm.
symmetry
principle
splitting
'
It
the
is
is
nor of any other sociological integral
result
A
could exist.
may
a
two
tribe into
—but
be almost completely obliterated that
symmetry
wherever
careful
of structure will be
as
society,
the inner
which no primitive community
dual organization
division of
foretell
of
of all social transactions, of the reciprocity
of services, without
in the
'
neither the result of
the
appear clearly '
moieties I
inquiry
'
or
venture to
be
made,
found in every savage
indispensable
basis
of
reciprocal
obligations.
The
sociological
reciprocity stringent.
are
manner
arranged,
in
which the relations of
makes
are not carried out haphazard,
any two individuals
trading with each other at random.
every
man
them yet more
Between the two communities the exchanges
On
the contrary,
has his permanent partner in the exchange,
and the two have to deal with each
other.
They
are
often relatives-in-law, or else sworn friends, or partners in the
kula.
important system of ceremonial exchange called
Within each community again the individual
;
CRIME AND CUSTOM
26
partners are ranged into totemic sub-clans.
So that the
exchange establishes a system of sociological
combined with
economic nature, often
ties of
other
an
ties
between individual and individual, kinship group and kinship group, village and village, district and district.
Going over the relations and transactions previously described,
easy to see that the same principle of
it is
mutuality supplies the sanction for each in every act a sociological dualism
:
rule.
two
(There
parties
is
who
exchange services and functions, each watching over the
measure other
of fulfilment
J The
and the
fairness of conduct of the
master of the canoe, whose interests and
ambitions are bound up with his craft, looks after order in the internal transactions between the
members
crew and represents the latter externally.
of the
To him each
member
of the
struction
and ever after, when co-operation is necessary.
crew
is
bound at the time
of con-
man
Reciprocally, the master has to give each
ceremonial payment at the feast of construction
;
the the
master cannot refuse any one his place in the boat
and he has to
see that each
of the catch. [In this of is
receives his fair share
in all the manifold activities
economic order, the social behaviour of the natives
on
based
a
mentally ticked is
and
man
off
and
in the long
no wholesale discharge
privileges
ear-mark.
;
no
'
The
give-and-take, always
well-assessed
of
communistic free
run balanced jThere
duties or acceptance of '
disregard of tally
and easy way
in
which
and all
LAW AND ORDER
27
transactions are done, the good manners which pervade all
and cover any hitches or maladjustments, make
it
difficult for
the superficial observer to see the keen
self-interest
and watchful reckoning which runs
To one who knows the
through.
nothing
is
more patent than
this.
which the master assumes within within the community by the
The same
control
his canoe, is
headman who
rule, also the hereditary magician.
right
natives intimately,
taken
is,
as a
V LAW, SELF-INTEREST, AND SOCIAL AMBITION
TT
added that there are
scarcely needs to be
also
other driving motives, besides the constraint of reciprocal obligations,
The
task.
utility of the pursuit, the craving for the
fresh, excellent diet,
of
which keep the fishermen to their
above
what to the natives
sport
—move
even, and
them more
more
effectively
as the legal obligation.
all,
is
perhaps, the attraction
an
intensely fascinating
obviously,
more consciously
than what we have described
But the
social constraint, the
regard for the effective rights and claims of others
is
always prominent in the mind of the natives as well as in their behaviour, once this
is
also indispensable to ensure the
For
institutions.
well understood.
smooth working
in spite of all zest
and
It is
of their
attractions,
there are on each occasion a few individuals, indisposed,
moody, obsessed by some other
by an
intrigue
obligation,
extremely
if
—who
would
they could.
difficult, if
interest
—very
like to escape
often
from their
Anyone who knows how
not impossible,
it is
to organize
a body of Melanesians for even a short and amusing pursuit requiring concerted action, and
how
well
and
LAW AND ORDER work
readily they set to will realize
in their
29
customary enterprises,
the function and the need of compulsion,
due to the native's conviction that another
man
has a
claim on his work.
There
obligations
another
yet
is
still
force
more binding.
which
makes
already the ceremonial aspect of the transactions. gifts of
the
mentioned
have
I
The
food in the system of exchange described above
must be specially
offered
according to strict formalities, in
made measures
in a prescribed
of
wood, carried and presented
manner, in a ceremonial procession and
with a blast of conch-shells.
Now nothing has a greater
sway over the Melanesian's mind than ambition and vanity associated with a display of food and wealth.
In the giving of
gifts,
in the distribution of their
and an
surplus, they feel a manifestation of power,
enhancement his
food in
The Trobriander keeps
of personality.
houses better
ornamented than
made and more Generosity
his dwelling huts.
highly is
the
highest virtue to him, and wealth the essential element of influence
and rank.
The
association of a semi-
commercial transaction with definite public ceremonies supplies another binding force of fulfilment through
a special psychological mechanism
:
the
desire
display, the ambition to appear munificent, the
for
extreme
esteem for wealth and for the accumulation of food.
We have thus gained some insight into the nature the mental and social forces which
make
of
certain rules
CRIME AND CUSTOM
30 of
Nor
conduct into binding law.
is
the binding force
Whenever the native can evade
superfluous.
his
obligations without the loss of prestige, or without the
prospective loss of gain, he does so, exactly
man would
civilized business
smoothness
'
run
the
in
do.
When the
of
obligations
attributed to the Melanesian it
becomes
is
'
as a
automatic so
often
studied more closely,
clear that there are constant hitches in the
transactions,
that
there
recrimination and seldom
with his partner.
is
a
is
much grumbling and man completely satisfied
But, on the whole, he continues in
the partnership and, on the whole, every one tries to fulfil
his obligations, for
through enlightened
boastful
is
impelled to do so partly
self-interest, partly in
to his social ambitions
savage, keen on
he
and sentiments. Take the
when he has
fulfilled
them, and compare him
dummy who
custom and automatically obeys is
real
evading his duties, swaggering and
with the anthropologist's
There
obedience
slavishly follows
every regulation.
not the remotest resemblance between the
teachings of anthropology on this subject and the reality of native
life.
We
begin to see
how
the
dogma
of mechanical obedience to
law would prevent the
field-worker from seeing the
really relevant facts of
primitive legal organization.
We
understand now that
the rules of law, the rules with a definite binding obligation, stand out
We
can see also that
from the mere rules of custom. civil law, consisting of positive
LAW AND ORDER ordinances,
mere
31
much more developed than
is
and
prohibitions,
study
a
that
among savages misses criminal important phenomena of their legal life. law
It is also
the body of
obvious that the type of rules which
been discussing, although they
are
purely
of
most
the
we have
unquestionably
way the character of down absolutely, obeyed
rules of binding law, have in no religious
commandments,
and
rigidly
essentially
siderable
laid
The
integrally.
and
elastic
rules here described are
adjustable,
latitude within
con-
a
leaving
which their fulfilment
The bundles
regarded as satisfactory.
of fish,
is
the
measures of yams, or bunches of taro, can only be roughly
and
assessed,
naturally
the
quantities
exchanged vary according to whether the fishing season or the harvest
is
more abundant.
All this
is
taken into account and only wilful stinginess, neglect, or laziness are regarded as a breach of contract. again, largesse
is
a matter of honour and praise, the
average native will strain
He
in his measure.
in
zeal
and
Since,
all
his resources to
be lavish
knows, moreover, that any excess
generosity
is
bound sooner or
later
to be rewarded.
We of the
can see
now
problem
that a narrow and rigid conception
— a definition of
'
law
'
as the machinery
of carrying out justice in cases of trespass
on one side referred.
In
all
all
the
phenomena
to
— would leave
which we have
the facts described, the element or aspect
32
CRIME AND CUSTOM
of law, that
is
in the
of effective social constraint, consists
complex arrangements which make people keep
Among them the most which many transactions
to their obligations.
important
the manner in
are linked
is
into chains of mutual services, every one of
to be repaid at
some
later date.
them having
The public and
ceremonial manner in which these transactions are usually carried out, combined with the great ambition
and vanity
of the Melanesian adds also to the safe-
guarding forces of law.
VI
THE RULES OF LAW T HAVE
IN RELIGIOUS ACTS
referred so far mainly to economic relations,
for civil
law
is
primarily concerned with owner-
among savages But we could find the
ship and wealth ourselves.
other domain of tribal characteristic
acts
for the dead.
among
as
well
legal aspect in
for
ceremonial
of
mourning and sorrow
Take
life.
as
any
example the most life
At
—the
first
we
in them, naturally, their religious character
:
rites
of
perceive
they are
by
fear or
love or solicitude for the spirit of the departed.
As the
acts of piety towards the deceased, caused
ritual
and public display
part of the ceremonial
life
Who, however, would religious transactions
of
?
emotion they are also
of the
community.
suspect a legal side to such
Yet
in the Trobriands there is
not one single mortuary act, not one ceremony, which
is
not considered to be an obligation of the performer
towards some of the other survivors. The widow weeps
and fear
wails in ceremonial sorrow, in religious piety
—but also because the strength of her
direct satisfaction to the deceased
maternal
relatives.
It
is
and
grief affords
man's brothers and
the matrilineal group of
CRIME AND CUSTOM
34
kindred who, according to the native theory of kinship
and mourning, are the people wife,
The
really bereaved.
though she lived with her husband, though she
should grieve at his death, though often she really and sincerely does so, remains but a stranger of matrilineal kinship.
surviving
members
to display her
It is
years after his death.
At the
some three days
her duty towards the
keep a long period of mourning
Nor
first
of her is
husband
for
this obligation
without
after her husband's death, she will
substantial one, for her tears is
some
big ceremonial distribution,
receive from his kinsmen a ritual payment,
feasts she
rules
of her husband's clan, accordingly,
grief, to
and to carry the jaw-bone
reciprocity.
by the
;
and
and a
at later ceremonial
given more payments for the subsequent
services of mourning.
It
should also be kept in mind
that to the natives mourning
is
but a link in the
life-
long chain of reciprocities between husband and wife
and between
their respective families.
1
Plate
III.
Obligatory display of grief in Ritual Wailing.
[face
page
34.
VII
THE LAW OF MARRIAGE HPHIS
brings us to the subject of marriage, extremely
important for the understanding of native law. Marriage
not
establishes
husband and
wife,
but
it
merely
bond between
also imposes
between the
relation of mutuality
a
family, especially her brother.
a standing
man and the wife's A woman and her
brother are bound to each other by characteristic and highly important ties of kinship.
In a Trobriand
family a female must always remain under the special
guardianship of one
man— one
of her brothers, or,
She has
she has none, her nearest maternal kinsman. to obey
him and
to
fulfil
looks after her welfare
even after she
is
a number of duties, while he
and provides for her economically
married.
The brother becomes the natural warden
who
children,
therefore have to regard
their father as the legal
turn
has
to
head
of the family.
look after them,
is
of her
him and not
He
in
and to supply the
household with a considerable proportion of This
if
its food.
the more burdensome since marriage being
— :
CRIME AND CUSTOM
36
patrilocal, the girl
moved away
has
to her husband's
community, so that every time at harvest there general economic chasse-croise
over the
all
After the crops are taken out, the
and the pick
of the crop
from each garden
conical heap.
The main heap
always for the
sister's
the
all is
skill
The
household.
and labour devoted to
district.
are classified
put into a
is
sole
purpose of
this display of
food
the satisfaction of the gardener's ambition.
garden produce, comment upon
district, will see
it,
The the
criticize, or praise.
my informant my sister and her family. my nearest relatives, my
big heap proclaims, in the words of
" Look what I
a
in each garden plot is
whole community, nay, the whole
A
yams
is
am
sister
have done
for
a good gardener and
and her
children, will never suffer for
After a few days the heap
food."
yams
I
is
want
of
dismantled, the
carried in baskets to the sister's village, where
they are put up into exactly the same shape in front of the yam-house of the sister's husband the
members
admire
it.
of the
community
;
there again
will see the
heap and
This whole ceremonial side of the transaction
has a binding force which we know already. The display, the
comparisons,
definite
the
psychological
public
assessment impose
constraint
a
upon the giver
they satisfy and reward him, when successful work enables
him
to give a generous gift,
and humiliate him luck.
and they penalize
for inefficiency, stinginess, or
bad
LAW AND ORDER ambition,
Besides
reciprocity
transaction as everywhere else
upon the
steps in almost
of all the
First
periodical
gifts
directly
prevails
this
at times, indeed,
;
heels of
an
it
act of fulfilment. definite
every annual harvest contribution. children
grow up, they
will
come
under the authority of their maternal uncle
the boys will have to help him, to assist
him
thing, to contribute a definite quota to all the
he has to make. His
him
in
husband has to repay by
when the
Later on,
37
sister's
;
in every-
payments
daughters do but
little for
but indirectly, in a matrilineal society,
directly,
they provide him with his heirs and descendants of
two generations below.
Thus placing the harvest sociological context,
relationship,
we
offerings
within
and taking a long view
their of the
see that every one of its transactions
is justified
as a link in the chain of mutualities.
taking
isolated,
it
torn
out
of
its
Yet each
setting,
transaction appears nonsensical, intolerably burden-
some and '
sociologically
communistic
' !
What
meaningless, also no doubt
could be more economically
absurd than this oblique distribution of garden produce,
where every in turn
energy
on is
man works
for his sister
his wife's brother,
and has to
rely
where more time and
apparently wasted on display, on show, on
the shifting of the goods, than on real work closer analysis
?
Yet a
shows that some of these apparently
unnecessary actions are powerful economic incentives,
38
CRIME AND CUSTOM
that others supply the legal binding force, while others, again, are the direct result of native kinship ideas. is
also clear that
of such relations
It
we can understand the legal aspect only if we look upon them integrally
without over-emphasizing any one link in the chain of reciprocal duties.
VIII
THE PRINCIPLE OF GIVE AND TAKE PERVADING TRIBAL LIFE
TN
the foregoing
from native
we have
life,
illustrating the legal aspect of the
marriage relationship,
team,
of
co-operation
of
duties of mourning.
certain ceremonial
These examples were adduced with some
what appears
me
to
to be the real
and psychological
If
in
mechanism
of law,
constraint, the actual forces,
motives, and reasons which obligations.
detail,
concrete working of
order to bring out clearly the
social
a fishing
in
food barter between inland and coastal
of
villages,
seen a series of pictures
make men keep
space permitted
it
to their
would be easy to
bring these isolated instances into a coherent picture
and to show that
in all social relations
various domains of tribal
mechanism can be
life,
traced, that
of
customary
comprehensive survey
To take of
will
it
places the binding
and
rules.
have to
sets
A
is
carried
them apart
rapid though
suffice.
the economic transactions
goods and services
in all the
exactly the same legal
obligations in a special category
from other types
and
first
:
barter
on mostly within a
CRIME AND CUSTOM
40
standing partnership, or
coupled with a mutuality in non-economic
social ties or
Most
matters.
associated with definite
is
if
not
all
economic acts are found to
belong to some chain of reciprocal gifts and countergifts,
which in the long run balance, benefiting both
sides equally. I
have already given an account
conditions
Economics
N.W.
in
of the
in "
Melanesia,
The
the Trobriand Islanders "
of
economic Primitive
(Economic
Journal, 1921) and in Argonauts of the Western Pacific, 1923.
Chapter vi of that volume deals with matters
here discussed,
My ideas time,
i.e.
the forms of economic exchange.
about primitive law were not mature at that
and the
facts are presented there without
reference to the
present argument
—their
any
testimony
only the more telling because of that. When, however, I
describe a category of offerings as
'
Pure Gifts
'
and
place under this heading the gifts of husband to wife
and
am
of father to children, I
a mistake.
I
have
obviously committing
fallen then, in fact, into the error
exposed above, of tearing the act out of
context, of
its
not taking a sufficiently long view of the chain of transactions.
In the same paragraph
I
my
however, an implicit rectification of stating that " a gift given
by the
said [by the natives] to be a
relationship to the
mother "
pointed out there that the
'
have supplied,
father to his son
repayment (p.
mistake in
179).
free gifts
'
for the I
is
man's
have also
to the wife are
—
LAW AND ORDER on the same
also based
idea.
But the
41 really correct
—correct both from the legal and from the economic point of view—would have been
account of the conditions
embrace the whole system of
to
gifts,
duties,
and
mutual benefits exchanged between the husband on one hand, wife, children, and wife's brother on the other.
would be found then
It
the system take,
is
and that
in native ideas that
based on a very complex give and
mutual services
in the long run the
balance. 1
The
why
real reason
are normally kept, failure
all
these economic obligations
and kept very scrupulously,
comply places a man
to
in
man who would
that
an intolerable
position, while slackness in fulfilment covers
opprobrium. The
is
him with
persistently disobey
the rulings of law in his economic dealings would soon find himself outside the social
and he
perfectly well aware of
is
supplied nowadays, laziness,
Test cases are
it.
when a number
eccentricity, or
of natives
through
a non-conforming spirit of
have chosen to ignore the obligations of
enterprise, 1
and economic order
Compare
also the apposite criticism of
my
expression " pure
by M. Marcel Mauss, in L.' Annie Sociologique, Nouvelle Serie, vol. i, pp. 171 sqq. I had written the above paragraph before I saw M. Mauss's strictures, which substantially agreed with my own. It is gratifying to a field- worker when
gift" and of
all
it
implies
his observations are sufficiently well presented to allow others to
refute his conclusions out
pleasant for
me
to find that
own material. It is even more maturer judgment has led me inde-
of his
my
pendently to the same results as those of M. Mauss.
my
distinguished friend
CRIME AND CUSTOM
42
and have become automatically outcasts
their status
and hangers-on
some white man or
to
The honourable duties,
citizen is
though his submission
bound is
other.
to carry out his
not due to any instinct
or intuitive impulse or mysterious
'
group-sentiment \
but to the detailed and elaborate working of a system, in
which every act has
performed without
fail.
its
own
place
Though no
and must be
can formulate this state of
intelligent,
general abstract manner, or present theory, yet every one in each concrete case
is
affairs
in a
as a sociological
it
well aware of
however
native,
its
existence
and
he can foresee the consequences.
In magical and religious ceremonies almost every act, besides its
regarded
as
primary purposes and
an
between
obligation
and here
effects, is also
groups
comes sooner or
and
later
an
equivalent repayment or counter-service, stipulated
by
individuals,
custom.
Magic in
institution in
its
also there
most important forms
is
a public
which the communal magician, who as a
rule holds his office
by
inheritance, has to officiate
behalf of the whole group. Such
on
is
the case in the magic
of gardens, fishing, war, weather,
and canoe-building.
As necessity
arises, at
circumstances he
is
the proper season, or in certain
under an obligation to perform his
magic, to keep the taboos, and at times also to control the whole enterprise. offerings,
For
this
he
is
repaid
by small
immediately given, and often incorporated
into the ritual proceedings.
But the
real
reward
lies
LAW AND ORDER in the prestige, power,
upon him.
confers
1
and
privileges
43
which
his position
In cases of minor or occasional
magic, such as love charms, curative
magic of toothache and
performed on behalf of another,
sorcery,
rites,
when
of pig-welfare,
it
is
has to be paid for
it
between
and
substantially
and the
professional
based on a contract defined by custom.
From have
is
relation
client
we communal
the point of view of our present argument,
to register the fact that all the acts of
magic are obligatory upon the performer, and that the obligation to carry
them out goes with the
communal magician, which and always
is
is
status of
hereditary in most cases
a position of power and privilege.
may relinquish his position and hand it in succession, but once
he accepts
it,
A man
over to the next
he has to carry
on the work incumbent, and the community has to give
him
in return all his dues.
As to the
acts
which usually would be regarded as
rather than magical
religious
—ceremonies at birth or
marriage, rites of death and mourning, the worship of ghosts,
have a
spirits,
mythical personages
or
—they
also
legal side clearly exemplified in the case of
mortuary
performances,
described
above.
Every
1 For further data referring to the social and legal status of the hereditary magician, see Chap, xvii on " Magic ", in Argonauts of
the
Western Pacific, as well
as
the descriptions of and sundry
references to canoe magic, sailing magic,
and kaloma magic. Compare Economics "
also the short account of garden magic in " Primitive
{Economic Journ., 1921) of war magic, in Man, 1920 (No. 5 of and of fishing magic, in Man, 1918 (No. 53 of article). ;
article)
;
CRIME AND CUSTOM
44
important act of a religious nature
conceived as a
is
moral obligation towards the object, the ghost, or power worshipped
also satisfies
it
;
craving of the performer
but besides
;
by some
regarded
some emotional
all this it
some
as a matter of fact its place in
has also
scheme,
social
person
third
spirit,
persons
or
it
is
as
due to them, watched and then repaid or returned
When,
in kind.
for example, at the
of the departed ghosts to
their village
offering to the spirit of a
dead
and no doubt
his feelings,
which feeds on the
you probably
involved
time and the the
rest,
spirit
meal
;
your own sentiment towards
its
is
also a social obligation
have been exposed
for
some
it
appears for ordinary con-
spiritual abstraction, is given to
a friend or relation-in-law a similar
satisfy
has finished with his spiritual share,
none the worse
sumption after
you
also his spiritual appetite,
But there
after the dishes
:
you give an
relative,
spiritual substance of the
also express
the beloved dead.
annual return
gift later on.
1
I
still alive,
can
who then
recall to
my
returns
mind not
one single act of a religious nature without some such sociological by-play
more or
less
directly associated
with the main religious function of the
importance
lies in
the fact that
it
makes the
act.
Its
act a social
obligation, besides its being a religious duty. 1 Comp. the writer's account of the Milamala, the feast of the annual return of the spirits, in " Baloma the spirits of the dead in the Trobriand Islands" (Journ. of the R. Anthrop. Institute, 1916). The food offerings in question are described on p. 378. ;
LAW AND ORDER I
could
still
45
continue with the survey of some other
phases of tribal life
and discuss more
fully the legal
aspect of domestic relations, already exemplified above,
or enter into the reciprocities of the big enterprises,
and so
on.
But
it
clear
now
that
given
are
not
must have become
the detailed illustrations previously
exceptional isolated cases, but representative instances of
what obtains
in every
walk of native
life.
IX
RECIPROCITY AS THE BASIS OF SOCIAL
STRUCTURE A GAIN,
recasting our whole perspective
i.e.
and looking
from the sociological point of view,
at matters
taking one feature
the
of
constitution
of
the
tribe after another, instead of surveying the various
types of their tribal activities,
it
show that the whole structure is
I
founded on the principle of
mean
that
husband
the claims
over
Trobriand society
legal status.
chief
of
versa, are not exercised arbitrarily
but according to definite
rules,
By
this
over commoners,
over
parent
wife,
would be possible to of
and vice
child,
and one-sidedly,
and arranged into
well-
balanced chains of reciprocal services.
Even the
chief,
whose position
is
hereditary, based on
highly venerable mythological traditions,
with
semi-religious
ceremonial taboos,
of
awe,
distance,
who has a
enhanced abasement,
surrounded
by a
princely
and stringent
great deal of power, wealth,
and
executive means, has to conform to strict norms and
bound by
legal fetters.
When
is
he wants to declare war,
organize an expedition, or celebrate a festivity, he
LAW AND ORDER must
47
summons, publicly announce
issue formal
his
will, deliberate with the notables, receive the tribute,
services
and assistance
manner, and scale.
1
finally
It is
previously
of his subjects in a ceremonial
repay them according to a definite
enough to mention here what has been about
said
the
of
status
sociological
marriage, of the relations between husband and wife,
and
of
the status between relatives-in-law. 2
whole division into totemic a
and into
nature
local
characterized duties, in
by a system
clans,
village
The
into sub-clans of
communities,
and
of reciprocal services
which the groups play a game
is
and
of give
take.
What
perhaps
is
most remarkable
in the legal nature
of social relations is that reciprocity, the give-and-take clan,
nay
we have
seen
already, the relation between the maternal uncle
and
principle,
supreme also within the
reigns
within the nearest group of kinsmen. As
1 Comp. for more detail, the various aspects of chieftainship I have brought out in art. cit. "Primitive Economics", op. cit. (Argonauts), and the articles on " War " and on " Spirits ", also
referred to previously. 2
Here again
I
must
refer to
some
of
my other publications,
where
these matters have been treated in detail, though not from the
See the three articles published in Psyche of of Sex in Primitive Societies ") ; Psycho- Analysis and Anthropology ") and January,
present point of view.
October, 1923 (" April, 1924 ("
The Psychology
;
Mother-Right "), in which many aspects of sexual psychology, of the fundamental ideas and customs of kinship and relationship, have been described. The two latter articles appear uniform with this work in my Sex mid Ripressiinin Sdvmge Society (1926). 1925
("
Complex and Myth
in
—
CRIME AND CUSTOM
48
between brothers, nay the
his nephews, the relations
most
unselfish relation, that
sister,
are
all
repayment
is
is
is
his
of services.
It is just this '
primitive
group which has
communism
The
\
often described as the only legal person, the one
body and unit
man and
and one founded on mutuality and the
always been accused of clan
between a
"
entity, in primitive jurisprudence.
not the individual, but the kin.
The
The individual
but part of the kin," are the words of Mr. Sidney HartThis
land.
is
certainly true
tion that part of social
in
life
if
we take
into considera-
which the kinship group
totemic clan, phratry, moiety, or class reciprocity
game
what about the
we
—plays
But
co-ordinate groups.
against
perfect unity within the clan
the
Here
?
are offered the universal solution of the " pervading
group-sentiment, to be specially
if
not group-instinct
rampant
",
which
is
said
in the part of the world with
which we are concerned, inhabited by
"a
people
dominated by such a group-sentiment as actuates the Melanesian "
(Rivers).
mistaken view.
This,
we know,
is
the keenest egotism flourish and
dominate indeed the whole trend of kinship this
for
more
point facts
I
shall
related
by
relations.
have to return presently,
and more
definitely telling ones are
necessary finally to explode this
communism,
a
Within the nearest kinship group
rivalries, dissensions,
To
quite
myth
of kinship-
of the perfect solidarity within the
direct descent, a
myth
group
recently revived
by
LAW AND ORDER
49
Dr. Rivers, and in some danger therefore of gaining general currency.
Having thus shown the range argument
applies,
of facts to
which our
having shown indeed that law covers
the whole culture and the entire tribal constitution of these natives, let us formulate our conclusions in a
coherent manner
X THE RULES OF CUSTOM DEFINED AND CLASSIFIED A T
the beginning of Section of current opinions
man an
I
examples were given
which attribute to primitive
automatic obedience to law.
Now
with this
assumption there are associated certain more special propositions which are universally current in anthro-
and yet
pology
fatal
to
the
study
of
primitive
jurisprudence. First of
all,
if
by
the rules of custom are obeyed
the savage through sheer inability to break them, then
no
definition
can be given of law, no distinction can be
drawn between the
rules of law, morals, manners,
other usages.
For the only way
classify rules of
conduct
is
by
in
and
which we can
reference to the motives
and sanctions by which they are enforced.
So that
with the assumption of an automatic obedience to
all
custom, anthropology has to give up any attempt at introducing into the facts order and classification,
which
We
is
the
first
task of science.
have seen already that Mr. Sidney Hartland
regards the rules of art, medicine, social organization, industry,
and what-not as hopelessly mixed up and
LAW AND ORDER lumped together
social
in all savage societies,
own comprehension and
native's
life.
occasions
:
semblances
between objects which, to our eyes,
single point in
the savage
.
visible.
.
.
.
.
.
common
They
.
.
ritual,
We may
from medicine
moderate
For
one and indi-
name
of
God
a code
as strictly juridical prescriptions.
sever religion from magic, and magic ;
the
members
of the
community draw
(pp. 213, 214).
Mr. Sidney Hartland gives lucid and
this
all
is
p. 139). "
moral, agricultural, and medical with
no such distinctions " In
{I.e.
[the savages] see nothing grotesque
what we understand .
"
the policy of a tribe
or incongruous in publishing in the
combining
both in the
the reality of
in
He states this view emphatically on several "... The savage's perception of rediffers very much from our own. He
sees resemblances
have not a
51
expression
to
the
current
views
about
" primitive prelogical mentality ", " confused savage categories ", culture.
and the general shapelessness
of early
These views, however, cover but one side of
the case, express but a half-truth
—as regards law, the
views here quoted are not correct.
The savages have
a class of obligatory rules, not endowed with any mystical character, not set forth in " the
name of God
",
not enforced by any supernatural sanction but provided
with a purely social binding If
we
designate the
and patterns
of
sum
force.
total of rules, conventions,
behaviour as the body of custom, there
CRIME AND CUSTOM
52 is
of
no doubt that the native
feels
a strong respect for
all
them, has a tendency to do what others do, what
every one approves
and,
of,
if
not drawn or driven in
another direction by his appetites or interests, will
any other
follow the biddings of custom rather than
The
course.
command and
custom be obeyed for savages
do not
'
of traditional
a sentimental attachment to
desire to satisfy public opinion
*
awe
force of habit, the
differ
its
—
own
it,
the
combine to make
all
In this the
sake.
from the members
of
any
self-
contained community with a limited horizon, whether this
be an Eastern European ghetto, an Oxford
or a Fundamentalist Middle
college,
West community.
love of tradition, conformism and the
sway
of
But
custom
account but to a very partial extent for obedience to rules
among
dons, savages, peasants, or Junkers.
Limiting ourselves strictly to savages once more, there are
among
the Trobrianders a
number
tional rules instructing the craftsman
The
trade.
inert
rules are
obeyed
savages
as
rules
'
is
and
uncritical
way
due to the general
we might
call
it.
But
how in '
of tradi-
to ply his
which these
conformism of
in the
main these
are followed because their practical utility
recognized
by reason and
Again, other injunctions of
testified
by
is
experience.
how to behave in associating
with your friends, relatives, superiors, equals and so on, are obeyed because
a
man
feel
and
any deviation from them makes
look, in the eyes of others, ridiculous,
LAW AND ORDER
53
These are the precepts of
clumsy, socially uncouth.
good manners, very developed in Melanesia and most strictly
down and
There are further rules laying
to.
the proceedings at games, sports, entertainments
which are the soul and substance
festivities, rules
amusement or pursuit and
of the it
adhered
is
felt
game
the
really a
are kept because
and recognized that any spoils
'
game.
In
it
—that
is,
failure to
'
play
when the game
is
be noted, there are
all this, it will
no mental forces of inclination or of self-interest, or even inertia, its
which would run counter to any rule and make
fulfilment a burden.
It is quite as
easy to follow
the rule as not, and once you embark upon a sporting or pleasurable pursuit,
you obey
all
its
you
rules
really
can enjoy
whether of
art,
it
only
if
manners,
or the game.
There are also norms pertaining to things sacred and important, the rules of magical
such
like.
rite,
funerary pomp and
These are primarily backed up by super-
natural sanctions and by the strong feeling that sacred
matters must not be tampered with.
By an
equally
strong moral force are maintained certain rules of personal conduct towards near relatives,
the household and others towards
ments
is
which
of the social code.
This brief catalogue
but
of
strong senti-
of friendship, loyalty, or devotion are felt,
back up the dictates
tion,
whom
members
is
not an attempt at a classifica-
mainly meant to indicate clearly that,
CRIME AND CUSTOM
54
besides the rules of law, there are several other types of
norm and
traditional
up by motives or
commandment which
forces,
are backed
mainly psychological, in any
case entirely different from those which are characteristic of
law in that community.
Thus, though in
my
survey attention has naturally been mainly focussed on the legal machinery,
I
social rules are legal,
show that the
was not intent on proving that but on the contrary,
rules of
I
all
wanted to
law form but one well-defined
category within the body of custom.
XI
AN ANTHROPOLOGICAL DEFINITION OF LAW
nnHE rules of law stand out from the rest in that they are felt
and regarded
as the obligations of one
person and the rightful claims of another.
They
are
sanctioned not by a mere psychological motive, but by
a definite social machinery of binding force, based, as
we
know, upon mutual dependence, and realized in the equivalent arrangement of reciprocal services, as well as in the combination of such claims into strands of
multiple
The ceremonial manner
relationship.
which most transactions are carried out, which public control
and
criticism,
adds
more
still
in
entails
to their
binding force.
We may *
therefore
group-sentiment
the
only
or
'
even
finally
or
'
the
dismiss the view that responsibility
collective
main
force
which
adhesion to custom and which makes
is
ensures
binding or
Esprit de corps, solidarity, pride in one's com-
legal.
munity and clan nesians
them
it
'
窶馬o
in
exist
undoubtedly among the Mela-
social order could
be maintained without
any culture high or low.
I
only want to enter
a caution against such exaggerated views as those of Rivers, Sidney Hartland, Durkheim,
and
others,
which
CRIME AND CUSTOM
56
would make
this unselfish, impersonal, unlimited group-
loyalty the corner-stone of
The savage
cultures.
all social
neither an extreme
is
nor an intransigent
individualist
ivist
'
man
in general, a mixture of both.
It
order in primitive
'
'
'
—he
collectis,
like
from the account here given that
results also
primitive law does not consist exclusively or even chiefly of negative injunctions, nor
criminal law.
And
yet
it is
is
savage law
all
generally held that with
the description of crime and punishment the subject of jurisprudence
munity
is
is
exhausted as far as a savage com-
concerned.
automatic obedience, rules of
As a matter i.e.
law in primitive communities and a denial of the possibility of civil law. rules cannot be stretched or
—but
of
the absolute rigidity of the
custom implies an over-emphasis
not be enforced
dogma
of fact the
of criminal
corresponding
Absolutely rigid
adapted to
life,
they need
So much
they can be broken.
even the believers in a primitive super-legality must admit.
Hence crime
is
the only legal problem to be
studied in primitive communities, there
among
savages, nor
any
pology to work out.
civil
is
no
civil
law
jurisprudence for anthro-
This view has dominated com-
parative studies of law from Sir
Henry Maine
most recent
as
authorities,
such
to the
Hobhouse,
Prof.
Dr. Lowie, and Mr. Sidney Hartland. Thus
we read
in
Mr. Hartland's book that in primitive societies " the core of legislation
is
a series of taboos
",
and that
"
LAW AND ORDER " almost
ail
(Primitive
early
Law,
p.
codes
consist
And
214).
57 prohibitions
of
" the general
again,
belief in the certainty of supernatural
punishment and
the alienation of the sympathy of one's fellows generate
an atmosphere of
terror
which
quite sufficient to
is
prevent a breach of tribal customs italics are
There
mine).
is
.
."
.
(p.
8
—the
no such " atmosphere of
terror " unless perhaps in the case of a few very exceptional
and sacred
rules of ritual
and
other hand the breach of tribal customs
is
prevented by
a special machinery, the study of which
all this
again Mr. Hartland
punishment
insists
the real
not alone. Steinmetz
and unintentional nature
and on
of
primitive
on the criminal character of early
on the mechanical,
jurisprudence, directed
is
and competent analysis
in his learned
flicted
is
primitive jurisprudence.
field of
In
and on the
religion,
their religious basis.
rigid,
almost un-
of the penalties in-
His views are fully
endorsed by the great French sociologists Durkheim and
who add
Mauss, bility,
besides one
revenge, in fact
more
all legal
clause: that responsi-
reactions are founded in
the psychology of the group and not of the individual. 1
Even such acute and well-informed sociologists as Prof. Hobhouse and Dr. Lowie, the latter acquainted at first hand with savages, seem to follow the trend of the 1
Steinmetz, Ethnologische Studien zur ersten Entwickelung der 1894 Durkheim in Annie Sociologique, i. pp. 353 sqq.
Strafe,
Mauss
;
in
V
Revue de VHistoire des Religions, 1897.
;
CRIME AND
58
CUSTOM
general bias in their otherwise excellent chapters on justice in primitive societies.
own province we have so far met with positive commandments only, the breach of which is penalized In our
but not punished, and the machinery of which can by
no procrustean methods be stretched beyond the which separates
civil
from criminal law.
If
line
we have
to provide the rules described in these articles with
some modern, hence necessarily inappropriate
—they must be called the body of
'
civil
law
'
label,
of the
Trobriand Islanders. *
the
law,'
Civil
phases of tribal
law governing
positive
consists then of a
life,
body
the
all
of binding
regarded as a right by one party and
obligations,
acknowledged as a duty by the other, kept
in force
by
a specific mechanism of reciprocity and publicity inherent in the structure of their society. civil
They
law are
and possess a certain
not only penalties for
offer
premiums stringency
elastic
for
an
These rules of
overdose
of
failure,
latitude.
but also Their
fulfilment.
ensured through the rational appreciation
is
of cause
and
number
of
effect
social
by the
natives,
combined with a
and personal sentiments such
as
ambition, vanity, pride, desire of self-enhancement by display,
and
also attachment, friendship, devotion
and
loyalty to the kin. It scarcely
phenomena
',
needs to be added that as
we have
'
discovered,
law
and
'
legal
described
and
'
W N
ÂŤs
co
LAW AND ORDER defined
them
in a part of Melanesia,
any independent an aspect
institutions.
of their tribal
life,
Law
59
do not consist
in
represents rather
one side of their structure,
than any independent, self-contained social arrangements.
Law
dwells not in a special system of decrees,
which foresee and define possible forms of
ment and provide appropriate
ILaw
is
tions,
barriers
non-fulfil-
and remedies.
the specific result of the configuration of obliga-
which makes
it
impossible for the native to shirk
his responsibility without suffering for
it
in the future
J
XII
ARRANGEMENTS
SPECIFIC LEGAL
HPHE rare quarrels which occur at times take the form of
an exchange of public expostulation (yakala) in
which the two parties assisted by friends and meet,
Such
recriminations.
relatives
one another, hurl and hurl back
harangue
litigation allows peqple to give
vent to their feelings and shows the trend of public
and thus
opinion,
may
it
disputes.
Sometimes
harden the
litigants.
however,
seems,
In no case
sentence pronounced is
be of assistance in settling
it
by a
is
is
to
there any definite
third party,
and agreement
but seldom reached then and there.
therefore
only
The yakala
a special legal arrangement, but of small
importance and not really touching the heart of legal constraint.
Some
other specific legal mechanisms
mentioned here.
One
of
them
is
may
also be
the kaytapaku, the
magical protection of property by means of conditional curses.
When
a
man owns
distant spots, where
it is
them, he attaches a palm
coco or areca palms in
impossible to keep watch over leaf to the
trunk of the
tree,
indication that a formula has been uttered,
automatically would bring
down ailment on the
an
which thief.
LAW AND ORDER Another institution which has a butabu, a
legal side is the kaytu-
form of magic performed over
trees of a
community
Gi
all
the coco-nut
to bring about their fertility, as
Such magic
a rule in view of an approaching feast.
entails a strict prohibition to gather the nuts or to
A
partake of coco-nut, even when imported. institution
and
is
the gwara.
A
1
pole
is
planted on the
any export
places a taboo on
this
similar reef,
of certain
valuable objects, exchanged ceremonially in the kula, while their importation on the contrary
This
is
a sort of moratorium, stopping
is
encouraged.
all
payments,
without any interference with the receipts, which also
aims at an accumulation of valuable objects before a big ceremonial distribution. feature
is
Another important
legal
a sort of ceremonial contract, called kayasa. 2
Here the leader
of
an expedition, the master of a
feast,
or the entrepreneur in an industrial venture gives a big
ceremonial distribution. Those benefit
by the bounty
who participate in it and
are under an obligation to assist
the leader throughout the enterprise. All these institutions, kayasa, kaytaftaku,
butabu,
are
not
entail
special binding ties.
exclusively
legal.
It
1
and kaytu-
But even they
would be
a
great
Comp. the account of this institution in Argonauts of the Western Pacific (references in Index s.v. Gwara). Also descriptions in Prof. Seligman's " Melanesians ", and in the present writer's " The Natives of Mailu " (Trans. R. Soc. of S. Australia, vol. 39), of the gola or gora
among 2
the Western Papuo-Melanesians.
Argonauts.
See in Index
s.v.
Kayasa.
CRIME AND CUSTOM
62
mistake to deal with the subject of law by a simple
enumeration of these few arrangements, each of which subserves a special function.
end and
The main province
mechanism, which
is
fulfils
of
law
a very partial is
to be found at the
in the social
bottom
of all
the real obligations and covers a very vast portion of their custom,
though by no means
all of it,
as
we know.
XIII
CONCLUSION AND FORECAST
HAVE
dealt
here
one
only with
province of
Melanesia, and the conclusions arrived at have
These conclusions, however,
naturally a limited range.
by a new method and
are based on facts observed
regarded from a new point of view, so that they might
up a
stimulate other observers to take
similar line of
study in other parts of the world. Let us
sum up
the contrast between current views on
the subject and the facts here presented. anthropological jurisprudence,
that
all
custom
is
law
universally
it is
the
to
he has no law but his custom.
In modern
savage
All
and that
custom again
obeyed automatically and rigidly by sheer There
is
no
societies.
civil
law or
its
The only relevant
breaches in defiance of custom
mechanism
assumed
is
inertia.
equivalent in savage
facts are the occasional
—the crimes.
There
is
no
of enforcement of the primitive rules of
conduct except the punishment of flagrant crime.
Modern anthropology,
therefore, ignores
and sometimes
even explicitly denies the existence of any social arrangements or of any psychological motives which
make
primitive
man obey
a certain class of custom for
J
CRIME AND CUSTOM
64
According to Mr. Hartland and
purely social reasons. all
the other authorities, religious sanctions, super-
natural penalties, group responsibility and solidarity,
taboo and magic are the main elements of
juris-
prudence in savagery. All these contentions are, as
I
have already indicated,
either directly mistaken or only partially true, or, at least,
they can be said to place the reality of native
Perhaps there
in a false perspective.
to argue that no
is
life
no further need
man, however savage or primitive '
'
'
'
will instinctively act against his instincts, or unwittingly
obey a rule which he evade or wilfully to defy taneously act in a
and
inclined
feels ;
manner contrary
inclinations. IJThe
cunningly to
or that he will not sponto all his appetites
fundamental function of law
to curb certain natural propensities, to
control
human
instincts
—in
ensure a type of co-operation which
and
force, different
sacrifices for
and
a
other words, to
is
based on mutual
common
end.
A new
from the innate, spontaneous endow-
ment must be present In order to
in
and to impose a non-spon-
taneous, compulsory behaviour
concessions
hem
is
make
we have given a
to perform this task.
this negative criticism conclusive,
positive statement of a concrete case
to present the facts of primitive law as
and have shown
in
really
is,
what the compulsory nature
of
it
primitive legal rules consists.
The Melanesian
of
the
region
here
treated
has
LAW AND ORDER unquestionably the
custom and
greatest
respect
65 for
his
tribal
Thus much may be
tradition as such.
conceded to the old views at the outset.
All the rules of
his tribe, trivial or important, pleasant or irksome,
moral or
and
felt
utilitarian, are
regarded by him with reverence
to be obligatory.
glamour of
tradition,
But the
if it
force of custom, the
stood alone, would not be
enough to counteract the temptations lust or the dictates of self-interest.
tradition *
savage
—the conformism —operates often
of appetite or
The mere sanction
and conservatism and
'
operates
of
of the
alone
in
enforcing manners, customary usage, private and public all
cases where
to establish the
mechanism
behaviour in
some of
rules are necessary
common
and
life
operation and to allow of orderly proceedings
where there
and
is
no need to encroach on
inertia or to
co-
—but
self-interest
prod into unpleasant action or thwart
innate propensities.
There are other require
rules, dictates
and possess
besides the
and imperatives which
their special type
mere glamour
of
sanction,
The natives
of tradition.
in
the part of Melanesia described have to conform, for
example, to a very exacting type of religious especially at burial
and
in mourning.
There
are, again,
imperatives of behaviour between relations. exists finally the sanction of tribal punishment,
a reaction munity.
in anger
By
and indignation
this sanction
human
of the
life,
ritual,
There
due to
whole com-
property, and,
CRIME AND CUSTOM
66 last
though not
in a Melanesian
least,
personal honour are safeguarded
community, as well as such institutions
as chieftainship, exogamy, rank
and marriage, which
play a paramount part in their tribal constitution.
Each
class of rules just
from the
rest
by
enumerated
sanctions
its
social organization of the tribe
do not form '
cake of custom
The
much.
guarding
of
'
its relation
to the
and to
its culture.
They
the fundamental rules safe-
property and personality form the class
which might be described as often over-emphasized
'
criminal law
central authority
'
at last to the
—very
'
government
and invariably torn out
proper context of other legal
come
'
by anthropologists and
connected with the problem of '
of tribal usage or
which we have been hearing so
last category,
life,
distinguishable
and by
amorphous mass
this
is
For
rules.
falsely '
and
of its
—and here we
most important point-Tthere
exists
a class of binding rules which control most aspects of tribal
life,
kinsmen,
which regulate personal relations between clansmen and tribesmen,
relations, the exercise of
of
power and
husband and wife and
settle
economic
of magic, the status
of their respective families
J
These are the rules of a Melanesian community which correspond to our
There
is
no
superstitious
punishment
civil law.
religious sanction to these rules,
or
rational,
enforces
visits their breach,
them,
no
no
fear*
tribal
nor even the stigma of
LAW AND ORDER
67
public opinion or moral blame.
The
make
lay bare and find
these rules binding
them not simple but described
none the
by one word
less.
we
shall
forces
not to be
definable,
clearly
which
or one concept, but very real
|The binding forces of Melanesian
civil
law
are to be found in the concatenation of the obligations,
mutual
in the fact that they are arranged into chains of services, a give
and take extending over long periods
of
time and covering wide aspects of interest and activity^
To
added the conspicuous and ceremonial
this there is
manner
in
which most
be discharged.
of the legal obligations
have to
This binds people by an appeal to their
vanity and self-regard, to their love of self-enhancement
by
display.
Thus the binding
due to the natural mental
force of these rules is
trend
of
self-interest,
ambition and vanity, set into play by a special social
mechanism into which the obligatory actions are framed.
With a wider and more of law, there
is
elastic
minimum
no doubt that new
the same type as those found in discovered.
'
There
is
legal
definition
phenomena
N.W. Melanesia
no doubt that custom
will is
'
of
be
not
based only on a universal, undifferentiated, ubiquitous force, this exists,
mental
and adds
must be
inertia,
its
though
this
unquestionably
quota to other constraint.
There
in all societies a class of rules too practical to
be backed up by religious sanctions, too burdensome
CRIME AND CUSTOM
68 to be left to
mere goodwill, too personally
individuals to be enforced
This
is
by any
vital to
abstract agency.
the domain of legal rules, and I venture to
foretell thatjreciprocity,
and ambition
will
systematic incidence, publicity
be found to be the main factors in the
binding machinery of primitive lawl
PART
II
PRIMITIVE CRIME AND ITS
PUNISHMENT
—
THE LAW IN BREACH AND THE RESTORATION OF ORDER TT
the nature of scientific interest, which
lies in
but refined curiosity, that to
the
it
extraordinary and sensational than
to
the
a
new
a young branch of study,
it is
At
normal and matter-of-course. line of research or in
in
first,
the exception, the apparent breach of the law, which attracts attention
the discovery of
and here
lies
new
the
it
scientific passion
Science in the long run
into the natural.
ordered
For
up the miraculous only to founded
well-regulated,
generally valid laws, driven forces,
and gradually leads to
paradox of
up a Universe
builds
natural
universal regularities.
systematic study takes
transform
is
turns more readily
according
on
by
definite all-pervading
to
a
few
fundamental
principles.
Not that wonder, the romance
of the marvellous
and mysterious, should be banished by reality.
course
The
by the
philosophic desire for
and metaphysics beyond the rim
is
ever kept on
new worlds and new
lures us
of
mind
science from its
experiences,
on by the promise of a vision
the furthest horizon.
But the
CRIME AND CUSTOM
72 character really
is
of
the
curiosity,
appreciation
what
of
marvellous has been changed in the mean-
time by the discipline of science.
The contemplation
of the great lines of the world, the
mystery of immediate
data and ultimate
meaningless impetus
of
'
creative
ends,
evolution
or student of culture,
sum
total
of
if
can be no more
sufficiently
thrills
reflect
upon
knowledge and contemplate
his
scientific
mind
there
from the unexpected accident,
isolated sensation of a new, unrelated landscape
in the exploration of reality. is
reality
he chooses to
But to the mature
its limits.
no
make
and questionable to the naturalist
tragic, mysterious,
the
'
the
Every new discovery
but a step further on the same road, every new
principle merely extends or shifts our old horizon.
Anthropology,
way
still
a young science,
is
now on
the
to free itself from the control of pre-scientific
interest,
though certain recent attempts at offering
extremely simple and, at the same time, sensational solutions of all the riddles of Culture are
by crude
still
dominated
In the study of primitive law
curiosity.
we
can perceive this sound tendency in the gradual
but definite recognition that savagery
moods,
and old
passions,
order. '
and
Even then
shocker
'
criminal justice,
accidents,
not ruled by
by
tradition
there remains something of the
interest
in
is
but
in
the
over-emphasis
the attention devoted
breaches of the law and their punishment.
of
to the
Law
in
CRIME AND PUNISHMENT modern
Anthropology
studied in
singular
its
is
still
almost
73
exclusively
and sensational manipulations,
in cases of blood-curdling crime,
followed
by
tribal
vendetta, in accounts of criminal sorcery with retaliation, of incest, adultery,
In
all
this,
breach of taboo or murder.
besides the dramatic piquancy of the
thinks he can,
incidents, the anthropologist can, or
trace certain unexpected, exotic, astonishing features of primitive
law
:
a transcending solidarity of the
kindred group, excluding
a legal and economic
all
sense of self-interest
Communism
a submission
;
to a rigid, undifferentiated tribal law.
1
As a reaction against the method and the just stated, I
principles
have tried to approach the facts of primitive
law in the Trobriands from the other end.
I
have started
with the description of the ordinary, not the singular of the
;
law obeyed and not the law broken
permanent currents and
tides
in
their
From
;
;
of the
social
life
and not
its
given,
have been able to conclude that contrary
to
I
adventitious storms.
most established views
civil
law
the account
—or
its
savage
Thus Rivers speaks of a " group sentiment of the clan system its accompanying communistic practices ", supposed to exist in Melanesia, and he adds that to such natives the " principle each man for himself is beyond the reach of understanding " (Social 1
with
'
'
Organization, p. 170). Sidney Hartland imagines that in savagery " The same code in the same Divine Name, and with equal authority,
may make regulations for the conduct of commercial transactions and of the most intimate conjugal relations, as well as for a complex and splendid ceremonial of divine worship " (Primitive Law, p. 214). Both statements are misleading. Comp. also the quotations in Part I, Sections I and X.
CRIME AND CUSTOM
74 equivalent it
—
extremely well developed, and
is
We
rules all aspects of social organization.
found
that
distinguished
by the
natives,
also
and
distinguishable,
clearly
is
it
that
from the other types of
norm, whether morals or manners, rules of art or
commands from being
Name, as
The
of religion. rigid,
are maintained
rational
adjustment.
by
Far
forces,
elastic
understood
and capable
his duties are in the
who knows
to look after his interests
native's attitude towards
and
We
to redeem his obligations.
much
far
of
from being exclusively a group
also
and
concern of the individual,
how
social
and necessary,
affair, his rights
of their law,
rules
absolute or issued in the Divine
main the
perfectly well
he has
realizes that
found indeed that the
duty and privilege
the same as in a civilized community
is
very
—to
the
extent in fact that he not only stretches but also
And
at times breaks the law.
this subject, not yet
discussed, will claim our attention in these chapters. It
would be a very one-sided picture indeed
law in the Trobriands, in
in
good working order, equilibrium
!
if
if
That
the rules were shown only
the system were only described
law
imperfectly, that there are
downs,
I
of the
functions
many
hitches
only
and break-
have now and again indicated, but a
description
of
very
full
the criminal and dramatic issues
necessary, though, as
unduly emphasized.
I
have
said, it
is
should not be
CRIME AND PUNISHMENT There
is still
look at native
one reason life
why we must have
in disorder.
We
by a number
The most important
Mother-right, which rules that a child
is
and morally beholden by kinship to
its
rank,
and
power
the rights to
and to
soil
inheritance,
local citizenship
and member-
The
and public
forming
rules
part
economic duties of a
and her household
status between brother
on
mythology,
on certain
of
the their
the
all
social intercourse is defined
matriarchal
of
man
The
law.
towards his married
constitute a strange
feature of this law.
pervades
mother and
the relations between the sexes and most
sister,
of their private
by
is
economic
dignities,
ship in the totemic clan.
and
of these
bodily related
This principle governs succession to
her only.
to
a close
found that in the
Trobriands, social relations are governed of legal principles.
75
and important
The whole system theory
native
magico-religious
institutions
sister
of
is
based on
procreation,
beliefs
and customs
and
it
the
of
tribe.
But, side by side with the system of Mother-right, in its
shadow
so to speak, there exist certain other,
minor systems defining the patrilocal
of legal rules.
status
of
The law
husband and
arrangements, with
bestowal of authority on the
its
of marriage,
wife,
with
limited but
man and
its
clear
of guardianship
over his wife and children in certain specified matters, is
based on legal principles independent of Mother-
—
CRIME AND CUSTOM
76
though on several points intertwined with
right,
and adjusted to
The
it.
community, the position
and
constitution of a village
headman
of the
in his village
of the chief in his district, the privileges
the public magician
of
—
it
these
all
are
and duties
independent
legal systems.
Now
problem
the
body
Is
?
own
upon
alien
conflict,
how
:
does
is
not perfect,
this
composite
behave under the strain of circumsystem well harmonized within
each
limits
keep within
that primitive law
emerges
of systems
stances its
we know
since
Does such a system, moreover,
?
or has
its limits
ground
Do
?
and what
is
it
a tendency to encroach
the systems then come into
the character of such conflict
?
Here once more we have to appeal to the criminal, disorder^,
disloyal
elements of the community to
furnish us with material from which
we can answer
our questions. In the accounts to which
which
we
will
and
—and
be given concretely and with some detail
keep before us the main problems
shall
unsolved
we now proceed
:
their
still
the nature of criminal acts and procedure relation
to
civil
law
;
the main factors
active in the restitution of the disturbed equilibrium
;
the relations and the possible conflicts between the several systems of native law.
While engaged in I
used always to
my
field-work in the Trobriands,
live right
among
the natives, pitching
tS
Ph 'A
CRIME AND PUNISHMENT
my
tent in the village,
and being thus
forcibly present
hum-drum
at all that happened, trivial or solemn,
The event which
or dramatic. relate
I
77
now proceed
to
my first visit in the Trobriands, after I had started my field-work
happened during
a few months only in the archipelago.
One day an outbreak motion told
me
that a death had occurred somewhere
in the neighbourhood.
a young lad of fallen I
my
was informed that Kima'i,
I
acquaintance, of sixteen or so, had
from a coco-nut palm and
hastened
and a great com-
of wailing
killed himself.
the next village where
to
this
had
occurred, only to find the whole mortuary proceedings in progress.
and
burial,
graphical
so that
aspects
circumstances
I
of
the
ceremonial,
the
tragedy
even
facts
occurred
at
of
or two singular in the village
my first case of death, mourning, in my concern with the ethno-
This was
I
the
which should have aroused
forgot
the
though
one
same
time
my suspicions.
found that another youth had been severely wounded
by some mysterious there
was obviously a general
between the
which
coincidence.
his
village
body was
Only much
later
And
at the funeral
feeling
of
hostility
where the boy died and that into carried for burial.
was
I
able to discover the real
the boy had committed
meaning
of these events
suicide.
The truth was that he had broken the
of
exogamy, the partner
:
in his crime being his
rules
maternal
CRIME AND CUSTOM
78
This had
cousin, the daughter of his mother's sister.
been known and generally disapproved
was done
who had
until the girl's discarded lover,
wanted to marry her and who took the
but nothing
of,
personally injured,
felt
This rival threatened
initiative.
to use
first
black magic against the guilty youth, but this had not
much
Then one evening he
effect.
culprit in public
insulted
the
—accusing him in the hearing of the
whole community of incest and hurling at him certain expressions intolerable to a native.
For
this
means
was only one remedy
there
of escape remained to the unfortunate youth.
Next morning he put on
festive attire
climbed a coco-nut
tion,
only one
;
palm
and ornamenta-
and addressed the
community, speaking from among the palm leaves
and bidding them for his desperate
accusation against the death, to
He
farewell.
explained the reasons
deed and also launched forth a veiled
upon which
it
man who had
became the duty
Then he wailed
avenge him.
driven
jumped from a palm some
and was
killed
on the
spot.
of his
aloud,
custom,
him
to his
clansmen as
is
the
sixty feet high
There followed a
fight
within the village in which the rival was wounded
and the quarrel was repeated during the
Now lines
this case
opened up a number
of inquiry.
pronounced
exogamy.
crime
I :
was here the
;
funeral.
of important
in the presence of a
breach
of
The exogamous prohibition
totemic is
clan
one of the
CRIME AND PUNISHMENT corner-stones
totemism,
of
an axiom
the
All females of his
by a man and forbidden
clan are called sisters It is
and
mother-right,
system of kinship.
classificatory
79
as such.
Anthropology that nothing arouses
of
a greater horror than the breach of this prohibition,
and that besides a strong reaction
of public opinion,
there are also supernatural punishments, which visit
Nor
this crime.
in fact.
If
is
this
axiom devoid
you were to inquire
the Trobrianders, you would find that
confirm the
axiom,
the
that
sores, disease
This
follow clan incest.
and
in
moral matters
is
it is
all
natives
at the idea of violating the rules of
they believe that
of foundation
into the matter
show horror
and even death might
the ideal of native law,
easy and pleasant strictly
—when judging the
expressing an
or
statements
exogamy and that
to adhere to the ideal
others
among
opinion about
conduct of
conduct in
general.
When and
it
comes to the application
ideals to
real
life,
different complexion.
of
morality
however, things take on a
In the case described
it
was
obvious that the facts would not tally with the ideal of
conduct.
Public
by the knowledge it
react directly
—
opinion
was neither outraged
of the crime to it
had
any extent, nor did
to be mobilized
by a
public
statement of the crime and by insults being hurled at
the culprit
by an
interested party.
Even then
he had to carry out the punishment himself.
The
—
CRIME AND CUSTOM
So 1
group-reaction
'
and the
supernatural
'
sanction
'
were not therefore the active
principles.
Probing
and
collecting
concrete
further
into
the
matter
exogamy
information, I found that the breach of
means a
rare occurrence,
and public opinion
though decidedly hypocritical.
on sub
rosa with a certain
no one
in particular stirs
will gossip,
If
amount
the affair
— up trouble
one or the other
may
As regards the supernatural
me
by no
is
lenient,
is
and
'
'
—every
one
by ostracism and
be driven to
suicide.
sanction, this case led
that
there
a perfectly well
is
a remedy considered practically
That
properly executed.
is
I
established
remedy against any pathological consequences trespass,
if
public opinion
an interesting and important discovery.
to
learned
if
carried
but not demand any harsh punishment.
turns against the guilty pair and insults
is
of decorum,
on the contrary, scandal breaks out
If,
—
and not marriage
as regards intercourse
of this
infallible,
to say the natives possess
a system of magic consisting of
spells
and
rites
performed over water, herbs, and stones, which when correctly carried out,
is
completely
efficient in
undoing
the bad results of clan incest.
That was the across
first
time in
what could be
of evasion
and that
my field-work
that
I
came
called a well-established system in the case of one of the
fundamental laws of the
tribe.
Later on
I
most
discovered
that such parasitic growths upon the main branches
CRIME AND PUNISHMENT
81
of tribal order exist in several other cases, besides the
counteraction of incest. obvious.
is
The importance
of this fact
shows clearly that a supernatural
It
sanction need not safeguard a rule of conduct with an
automatic
may
be counter-magic.
run
the
risk
magical
Against
effect.
—the
It is
there
influence
no doubt better not to
counter-magic
may have
imperfectly learned or faultily performed
—but
been the
The supernatural sanction shows
risk is not great.
then a considerable
elasticity,
in
conjunction with
a suitable antidote. This methodical antidote teaches us another lesson. In a community where laws are not only occasionally broken,
but
established
a
'
systematically
'
obedience to law, of slavish adherence
For
tradition.
this
how
surreptitiously
commands
well-
methods, there can be no question of
spontaneous
to
by
circumvented
—and
to
teaches
tradition
evade some of
its
man sterner
you cannot be spontaneously pushed
forwards and pulled back at the same time
!
Magic to undo the consequences of clan incest perhaps
the
most
definite
instance
of
is
methodical
evasion of law, but there are other cases besides.
Thus a system of a
of
magic to estrange the affections
woman from
her husband and to induce her to
commit adultery
is
a
traditional
way
of
flouting
the institution of marriage and the prohibition of adultery.
To
a slightly different category perhaps
CRIME AND CUSTOM
82
belong the various forms of deleterious and malicious
magic
to destroy the crops, to thwart a fisherman,
:
to drive the pigs into the jungle, to blight bananas,
coco-nuts or areca palms, to spoil a feast or a Kula expedition.
Such magic, being
institutions
and important
levelled at established
pursuits,
instrument of crime, supplied by tradition. it
is
an
really
is
As such
a department of tradition, which works against
law and
is
directly in conflict with
since law in
it,
various forms safeguards these pursuits and institutions.
The
case of sorcery, which
presently,
as
certain
also
a special and very
is
important form of black magic,
be discussed
will
non-magical
systems
of
evasion of tribal law.
The law
of
exogamy, the prohibition of marriage
and intercourse within the clan
often quoted as
is
one of the most rigid and wholesale commandments of primitive law, in that
forbids sexual relations
it
within the clan with the same stringency, regardless of the degree of kinship
cerned. '
The unity
classificatory
—most
between the two people con-
of the clan
system of relationship
fully vindicated in the
It lumps together
the clan as
'
and the
all
brothers
the '
'
reality of the
are
—
it is
urged
taboo of clan incest.
men and
and
'
all
sisters
'
the
women
to each
of
other
and debars them absolutely from sexual intimacy.
A
careful
analysis
of
the
relevant
facts
Trobriands completely disposes of this view.
in
the It
is
CRIME AND PUNISHMENT
83
again one of these figments of native tradition, taken
over at
face value
its
incorporated into the breach of
its
by anthropology and bodily
teachings. 1
exogamy
is
In the Trobriands,
regarded quite differently
according to whether the guilty pair are closely related
by bonds
or whether they are only united Incest with a sister
clanship.
is
to the natives an
unspeakable, almost unthinkable crime does not
mean
that
it is
and
it
—which
again
never committed. The breach
in the case of a matrilineal first cousin offence,
common
of
a very serious
is
can have, as we have seen, tragic conse-
As kinship recedes, the stringency lessens when committed with one who merely belongs to
quences.
and,
the same clan, the breach of
exogamy
is
but a venial
Thus, as regards this pro-
offence, easily condoned.
hibition, the females of his clan are to a
man
compact group, not one homogeneous
clan
'
not one ',
but a
well-differentiated set of individuals, each standing in a special relation, according to her place in his genealogy. 1
To
give an illustration, reversing the role of savage and civilized,
and informant
many
my
Melanesian friends, preached by Christian Missionaries and the taboo on warfare and killing preached and promulgated by Government officials, were unable to reconcile the stories about the Great War, reaching through traders, overseers, plantation planters, hands the remotest Melanesian or Papuan village. They were really puzzled at hearing that in one day white men were wiping out as many of their own kind as would make up several of the biggest Melanesian tribes. They forcibly concluded that the White Man was a tremendous liar, but they were not certain at which end the lie lay whether in the moral pretence or in his bragging about war achievements. of ethnographer
taking at
its
:
face value the doctrine of
of
'
brotherly love
—
'
—
—
CRIME AND CUSTOM
84
From
the point of view of the native libertine,
suvasova (the breach of exogamy)
and spicy form
interesting of
my
is
indeed a specially
of erotic experience.
Most
informants would not only admit but actually
did boast about having committed this offence or that of
adultery (kaylasi)
;
and
I
attested cases on record.
So
far
have spoken
I
within the same clan
Nowadays
Jjave
is
many
^P ^B of
a
concrete, well-
1MB Marriage
intercourse.
much more
serious affair.
even, with the general relaxation of the
rigour of traditional law, there are only
some two or
three cases of marriage within the clan in existence, the
most notorious being that
Modulabu, headman of the
of
large village of Obweria, with Ipwaygana, a
witch,
who
is
tauva'u, supernatural evil spirits
Both
renowned
also suspected of intercourse with the
who
bring disease.
of these people belong to the Malasi clan.
remarkable that this clan
There
with incest. incest,
which
happened
is
is
a
is
It is
traditionally associated
myth
of brother
and
sister
the source of love magic, and this
in the Malasi clan.
The most notorious
case
of brother-sister incest of recent times also occurred in this clan. 1
Thus the
relation of actual
life
to the ideal
state of affairs, as mirrored in traditional morals
law,
is
and
very instructive.
1 For an ampler account of this subject, see the writer's article on " Complex and Myth in Mother- right ", Psyche, vol. v, No. 3, reprinted in op. cit., Sex and Repression in Savage Jan., 1925 ;
Society,
uniform with this work.
—
II
SORCERY AND SUICIDE AS LEGAL INFLUENCES
TN
the preceding section
I
have described a case of
breach of tribal law and discussed the nature of criminal tendencies as well as of the forces which set
about to restore order and tribal equilibrium as soon as it
has been upset.
We
touched in our account upon two incidents
the use of sorcery as means of coercion and the practice of suicide as expiation
discussion
must now be devoted
is
number
of specialists
to these
—as
a rule
men
number
They
conditions.
and
of spells
by a
of outstanding
power on
also professionally for a fee.
sickness
and death
sorcerer
is
is
limited
by
art
and submitting to certain
exercise their
belief in sorcery is deeply rooted
their
own
Since the
and every serious
attributed to black magic, the
held in great awe, and, at
position lends itself inevitably to abuse It
two
detailed subjects.
and personality, who acquire the
intelligence
learning a
A more
practised in the Trobriands
Sorcery
behalf,
and challenge.
first
sight, his
and blackmail.
has been in fact frequently affirmed that sorcery
the main criminal agency, as regards Melanesia
is
and
CRIME AND CUSTOM
86
Speaking of the region
elsewhere.
personal experience,
N.W.
know from
I
Melanesia, this view repre-
sents one side of the picture.
Sorcery gives a
power, wealth, and influence
and
further his
much him
own
to lose
man
he uses to
ends, but the very fact that he has
and
little
to gain
as a rule very moderate.
and the other
;
this
sorcerers
by
flagrant abuses
The
makes
the notables,
chief,
watch over him carefully
moreover not infrequently one sorcerer
is
;
believed to
be put away by another on behalf of a chief and by the chief's orders.
As regards
—
power the
his services, sold professionally, those in
men
chiefs,
first
of rank
When
claim on him.
people, the sorcerer
and wealth
—have
again
appealed to by lesser
would not lend himself to unjust
He
or fantastic requests.
is
too rich and big a
man
to
do anything outside the law and he can afford to be honest and just.
unlawful act
When
a real injustice or a thoroughly
to be punished on the other hand, the
is
sorcerer feels the weight of public opinion with
and he
is
him
ready to champion a good cause and to receive
his full fee.
In such cases also the victim, on learning
that a sorcerer
is
at
work against him, may
quail
and make amends or come to an equitable arrangement.
Thus
ordinarily, black
force, for it is
law,
it
magic acts as a genuine
legal
used in carrying out the rules of tribal
prevents the use of violence and restores
equilibrium.
CRIME AND PUNISHMENT An
interesting denouement,
aspect of sorcery,
This
witchcraft.
exhumed body.
Some
opened,
examined.
12 to 24 hours after the pre-
the
subsequent sunset, the
first
body washed, anointed and
The custom has been forbidden by Govern-
ment Orders
who anyhow
—
disgusting
'
is
it
—but
remoter
villages.
it
is
I
still
A
man,
surreptitiously practised in
have assisted several times at an
exhumation and once, when before the sun
photographs.
to the white
'
has no opportunity nor any business to
be there
earlier,
of finding
has been killed by
achieved by the correct interpreta-
is
liminary burial, at the is
man
marks or symptoms to be seen on the
tion of certain
grave
the legal
illustrating
by the custom
furnished
is
out the reasons for which a
87
had
it
was done somewhat
set, I
The proceedings
was able to obtain
are highly dramatic.
throng presses round the grave, some people rapidly
remove the earth amid loud
wailing, others intone
magical spells against mulukwausi (corpse-devouring
and man-killing
flying witches)
present with chewed ginger.
and
spit over all those
As they come nearer the
bundle of mats enshrouding the corpse, they wail and chant louder and louder, until the body
amid an outburst and press
nearer.
of screams
uncovered
and the throng sweep
All urge forward to see
platters with coco-nut
to
is
it,
cream are given to those nearest
wash the body with, ornaments are taken
corpse,
it
is
wooden
rapidly washed,
off
the
wrapped up again and
CRIME AND CUSTOM
88 buried.
During the time
be registered. of opinion
marks and
it is
not a formal affair and differences
It is
Often there are no clear
are frequent. still
out the marks have to
more often people cannot agree
in their
verdict.
But there are marks
(kala
wabu) about which there
can be no doubt, which unequivocally indicate a habit, propensity or characteristic of the dead one, which had
provoked the
some one who had then
hostility of
commissioned a sorcerer to
kill
the victim.
If
the body
shows scratches, especially on the shoulder, similar to kimali, the
erotic
dalliance, this
scratches impressed during sexual
means that deceased has been
of adultery or has
guilty
been too successful with women, to
the annoyance of a chief,
man
of power, or a sorcerer.
This frequent cause of death produces also other
symptoms
:
legs apart
;
the
exhumed body
mouth
or with the
pursed, as
the smacking sound used to call
with
lice,
since lousing one another
observed to gesture,
and
move lo
!
:
is
is
found swarming
a favourite tender
the other day a dying
his
arm
to
after his
and
fro in a
concrete case, the dying
and
man was
beckoning
body was exhumed there
were kimali marks on the shoulders.
smacking sound,
to emit
^Sometimes certain symptoms
occupation of lovers.
appear before death
if
a desired person
Or again the body
to a secret tryst.
found with the
is
man was
later
on
at
Again
in another
heard to emit a
exhumation he
—
CRIME AND swarmed with
man had some
89
had been notorious that
It
lice.
PUNISHMENT
this
allowed himself to be loused in public by
of the wives of
paramount
chiefs
Numakala, one
—and
Kiriwina
of
of the former
he had
been
obviously punished by high order.
When
signs are discovered
which suggest decoration,
face painting or certain dancing ornamentations, or
when the
corpse's
hand trembles,
as does the master-
dancer's in wielding the kaydebu (dancing shield) or
the bisila (bunch of pandanus leaves)
—his
personal
beauty or those achievements which gain favour with the fair sex had set sorcery against the defunct
Juan.
Don
Red, black and white hues on the skin, patterns
suggestive of the designs store, swellings like the
signify that the
on a noble's house
beams
of a rich
and
yam-house
dead one indulged in too ambitious
decorations of his hut or store, and thus aroused the chief's
resentment.
Taro-shaped
tumours
or
an
inordinate craving for this vegetable shortly before
death indicate that deceased had too splendid tarogardens or did not pay sufficient tribute of this com-
modity to the
chief.
Bananas, coco-nuts, sugar-cane
produce mutatis mutandis similar
effects,
nut colours the mouth of the corpse red. is
found foaming at the mouth,
it
while betelIf
the body
shows that the
man
was too much addicted to opulent and ostentatious eating or bragging about food. off in folds
means
A
loose skin, peeling
in particular abuse of
pork diet or
AND CUSTOM
CRIME
90
dishonest dealing in the stewardship of pigs, which are the chief's
monopoly and only given into the care
of lesser men.
The
chief also resents
it
when a man has
not kept to the ceremonial and not bent before him
low enough
;
in his grave.
such a
man
will
be found doubled up
Putrid matter flowing in strings out of
the nostrils represents, in this post-mortem sorcery code, the valuable necklaces of shell-discs
Kula trade
great a success in the
arms indicate the same through the
swellings on the
means
of
mwali
Finally, a
(armshells).
the reason that he the normal
besides
;
and thus too
while circular
man
killed for
a sorcerer himself, produces,
is
spirit
a material
(baloma), also
ghost (kousi), which spooks round the grave and plays various pranks. 1
The body
of a sorcerer is also often
found disarranged, distorted in the grave.
have obtained
I
cases and noting
this
list
symptoms
by
discussing concrete
actually registered.
very important to realize that frequently,
most
is
no agreement about them.
man
should say
no signs are found on the body or there
in
cases,
I
It is
Needless to say, a sick
always suspects, in fact thinks he knows
who
is
the sorcerer guilty of his ailment, on whose behalf
he acts and for what reason. Compare the
So that the
'
rinding
'
on Baloma in the Journal of the Royal where I describe the beliefs in the two surviving principles in detail, without mentioning that the kousi is found exclusively in the case of a sorcerer. This I found out during my third expedition to New Guinea. 1
Anthrop.
article
Inst., 1916,
'
'
CRIME AND PUNISHMENT mark has
of a
the characters of an
what
verification of
the above
all
is
already known.
which includes the
list,
'
91
a posteriori
In this
light,
causes of death
'
openly discussed and readily found, receives a special significance
it
:
shows us which offences are not
altogether considered dishonourable or contemptible,
and
also those
which are not too burdensome on the
In fact sexual success, beauty,
survivors.
in
skill
dancing, ambition for wealth and recklessness in display
and in the enjoyment
by
sorcery
—these
of worldly goods, too
are
enviable
much power
failings
or
sins,
dangerous, since they arouse the jealousy of the mighty,
On
but surrounding the culprit with a halo of glory. the other hand, since almost
all
these offences are
resented by the chief of the district, rightly resented at
that and legally punished, the survivors are relieved of
the burdensome duty of vendetta.
The point ever,
much
is
that
of real importance in our argument, all
these standard
resented
is
symptoms show us how
any prominence, any excess
qualities or possessions not
one
the
mediocrity of others privilege
and duty to
is
or virtue not
These things are
associated with rank or power.
and
of
warranted by social position,
any outstanding personal achievement punishable
how-
who watches over
the
tradition
chief, is
whose
the
essential
to enforce the golden
mean upon others. The chief, however, cannot use direct when only a suspicion
bodily violence in such matters,
CRIME AND CUSTOM
92
or a shade of doubt or a tendency
The proper
delinquent.
and be
to sorcery
it
legal
means
tell
for
him
remembered he has
out of his private purse.
He
against the is
to
to resort
pay
for it
was allowed to use violence
came
(i.e.
before white man's
any
direct breach of etiquette or ceremonial as well as
'
orders
'
flagrant offences, such as adultery with
in),
to punish
any of his wives,
any personal
theft of his private possessions or
insult.
A man who would dare to place himself above the chief's head,
touch that tabooed part of his neck or
to
shoulders, to use certain filthy expressions in his presence, to
commit such breach
of etiquette as sexually to allude
to his sister
—would have been immediately speared by
one of the
chief's
full
Cases are on record in which by an accident a offended the chief, and had to fly for his
recent case
is
the opposite
This
that of a
man who
and
Vy
had been
death was regarded as a just
retribution for his offence
We
A
insult at the chief.
actually killed after peace his
life.
during warfare from
camp had hurled an
man was
concluded,
/
This applies in
stringency to the paramount chief of Kiriwina
only.
man
armed attendants.
and no vendetta followed.
can see thus that in many, in fact in most
cases, black
magic
instrument
in
privileges
is
the
regarded as the chief's principal
enforcement
of
and prerogatives. Such cases
his
exclusive
pass, of course,
imperceptibly into actual oppression and crass injustice, of
which
I
could mention also a
number
of concrete
CRIME AND PUNISHMENT Even
instances.
on the
then, since
it
invariably ranges
side of the powerful, wealthy,
and
the long run, of law and order.
and
it
itself
influential,
sorcery remains a support of vested interest
servative force,
93
;
hence in
always a con-
It is
main source
furnishes really the
of the wholesome fear of punishment and retribution
indispensable in any orderly society.
more
anything
There
pernicious, therefore, in
European ways
is
hardly
the
many
of interference with savage peoples,
than the bitter animosity with which Missionary, Planter,
and
pursue the sorcerer. 1
Official alike
The
rash, haphazard, unscientific application of our morals,
and
laws,
customs
to
native
and
societies,
the
destruction of native law, quasi-legal machinery and
instruments of power leads only to anarchy and moral
atrophy and in the long run to the extinction of culture
and
race.
Sorcery, in fine,
is
neither exclusively a
method
of
administering justice, nor a form of criminal practice.
can be used both ways, though
It
in direct opposition to law,
it is
never employed
however often
used to commit wrongs against a weaker of a
way 1
more powerful. of
The
In whatever
way
emphasizing the status quo, sorcerer,
who
order, the old beliefs
might be
man on
it
works,
him.
enemy
of the white
it is
a of
the old tribal
of power, naturally resents
the innovators and the destroyers of his Weltanschauung. as a rule the natural
behalf
a method
stands for conservatism,
and apportionment
it
He
is
man, who therefore hates
'
CRIME AND CUSTOM
94
expressing the traditional inequalities and of counter-
new
acting the formation of any
servatism
the most important trend in a primitive
is
society, sorcery
on the whole
enormous value
for early culture.
is
a beneficent agency, of
These considerations show clearly is
to
draw a
line
of
The
sorcery.
aspect of law in savage communities
vaguer than the
'
how
difficult
it
between the quasi-legal and quasi-
applications
criminal
Since con-
ones.
civil
'
criminal
'
perhaps even
is
one, the idea of
'
justice
'
in
our sense hardly applicable and the means of restoring a disturbed tribal equilibrium slow and cumbersome.
Having
something
learnt
about
criminology from the study of sorcery,
us
Though by no means a purely
to suicide.
suicide
institution,
(jumping
off
now
pass
juridical
possesses incidentally a distinct
It is practised
legal aspect. lo'u
let
Trobriand
by two
a palm top)
serious
methods
and the taking of
irremediable poison from the gall bladder of a globefish (soka)
of
some
fish.
;
and by the milder method
of partaking
of the vegetable poison tuva, used for stunning
A
generous dose of emetic restores to
poisoned by tuva, which
is
life
one
therefore used in lovers'
quarrels, matrimonial differences, of which several occurred during
and
my
similar cases,
stay in
the
Trobriands, none fatal.
The two escape
fatal
forms of suicide are used as means of
from situations without an issue
and the
CRIME AND PUNISHMENT underlying
mental
embracing
the
attitude
desire
of
is
95
somewhat complex, revenge,
self-punishment,
re-habilitation, and sentimental grievance.
A number
of concrete cases briefly described will illustrate best
the psychology of suicide.
A case
somewhat
similar to that of Kima'i, described
above, was that of a
girl,
Bomawaku, who was
with a youth of her own clan and had an acceptable suitor, for
her bukumatula
in
built for her
whom
father
dormitory),
and received there her
unlawful lover. Her suitor discovered
upon which she put on
in public,
and
she did not care. She lived
(unmarried peoples'
by her
in love
official
this, insulted
festive dress
her
and
ornamentation, wailed from the palm top, and jumped off.
This
is
an old
story, told
me by an The
in reminiscence of the Kima'i event.
eye-witness, girl
had
sought an escape from an intolerable impasse,
also into
which her passion and the traditional prohibitions had placed her.
But the immediate and the
the suicide was the
moment
of insult.
If
real cause of
not for that,
the deeper but less poignant conflict between love and
taboo would never have led to a rash
Mwakenuwa
of Liluta, a
man
act.
of high rank, great
magical powers, and outstanding personality, whose
fame has reached down to our times across a couple of generations,
to
whom
had among other wives one
he was very attached.
He
Isowa'i,
used to quarrel
with her sometimes and one day in the course of a
CRIME AND CUSTOM
96
violent dissention he insulted her
by one
of the worst
formulae (kwoy lumuta) which, especially from husband to wife,
regarded as unbearable. 1
is
to the traditional idea of honour
on the spot by lou (jumping while
wailing
the
Mwakenuwa
for
Isowa'i acted
and committed
off
Next day,
a palm).
Isowa'i
was
up
suicide
progress,
in
followed her and his corpse was placed
Here
beside hers to be bewailed together.
was rather
it
a matter of passion than of law. But the case well shows
how
strongly the traditional feeling and sense of honour
was averse
to
any
even calm tone. could be
her
jumped
off
any transgression
of the
the self-inflicted fate of the one
life.
similar case occurred
husband accused
some time
ago, in
his wife of adultery,
which the
upon which she
a palm and he followed her. Another event
more recent
of
excess, to
shows also how strongly the survivor
moved by
who had taken
A
It
date,
was the
Isakapu of Sinaketa,
suicide
by poisoning
of
accused by her husband of
adultery.
Bogonela, a wife of the chief Kouta'uya of
Sinaketa,
discovered guilty of misconduct during his
absence by a fellow wife, committed suicide on the spot.
A
few years ago in Sinaketa a
his wives,
who accused him
transgressions,
1
cf.
man
pestered
of adultery
by one
of
and other
committed suicide by poisoning.
For an account and analysis of abuse and obscene expressions, cit., Sex and Repression in Savage Society or the writer's article
op.
in Psyche, v. 3, 1925.
;
CRIME AND PUNISHMENT
97
Bolubese, wife of one of the previous paramount chiefs of Kiriwina, ran
own
away from her husband
to her
and threatened by her own kinsmen
village,
(maternal uncle and brothers) to be sent back by force, killed herself
number
of
by
to
my
notice a
illustrating
the
tensions
lovers,
between
lou. There
similar
cases,
between husband and
wife,
came
between
kinsmen.
Two suicide
motives must be registered in the psychology of :
first,
there
always some
is
crime or
sin,
passionate outburst to expiate, whether a breach of
exogamous
rules,
or adultery,
done, or an attempt to secondly, there
is
public, forced
One
of these
escape onels obligations
a protest against those
brought this trespass to in
or an unjust injury
him
light,
who have
insulted the culprit
into an unbearable situation.
two motives may be
at times
more
prominent than the other, but as a rule there a mixture of both in equal proportions.
is
The person
publicly accused admits his or her guilt, takes
all
the
consequences, carries out the punishment upon his
own
person, but at the
same time
declares that he has
been badly treated, appeals to the sentiment of those
who have
driven
him
friends or relations, or
to the extreme if
Suicide
is
they are his
they are his enemies appeals
to the solidarity of his kinsmen, asking
on a vendetta
if
them
to carry
(lugwa).
certainly not a
means
of
administering
—
CRIME AND CUSTOM
98 justice,
but
it
affords the accused
whether he be guilty or innocent
and
rehabilitation.
of the natives,
is
It
and oppressed one
—a means of escape
looms large in the psychology
a permanent
of language or behaviour,
damper on any
violence
on any deviation from custom
or tradition, which might hurt or offend another.
/Thus t'
suicide, like sorcery, is a
means
of keeping the
natives to the strict observance of the law, a
means
of
preventing people from extreme and unusual types
Both are pronounced
behaviour.
of
conservative
and as such are strong supports
influences
of
law and
order.
What have we and
its
learned
from the facts of crime
punishment recorded in
going chapters
?
We
this
and the
fore-
have found that the principles
—^according to which crime
is
punished are very vague,
that the methods of carrying out retribution are
fitful,
governed by chance and personal passion rather than
by any
system
of
fixed
important methods, in
fact, are
legal institutions, customs,
The most
institutions.
a bye-product of non-
arrangements and events
such as sorcery and suicide, the power of the chief, magic, the supernatural consequences of personal acts of vindictiveness. usages, far
from being
taboo and
These institutions and
legal in their
main
function, only
very partially and imperfectly subserve the end maintaining and enforcing the biddings
We
of
of tradition.
have not found any arrangement or usage which
CRIME AND PUNISHMENT could be classed as a form of justice
administration of
according to a code and by fixed methods.
',
All the legally effective institutions
means
'
of cutting short
affairs, of restoring
an
we found
by
the equilibrium in social
and
life
and
injustice
Crime in the Trobriand society
individuals.
can be but vaguely defined of passion,
are rather
illegal or intolerable state of
of giving vent to the feelings of oppression felt
99
—
it is
sometimes an outburst
sometimes the breach of a definite taboo,
sometimes an attempt on person or property (murder, theft, assault),
sometimes an indulgence in too high
ambitions or wealth, not sanctioned by tradition, in conflict
with the prerogatives of the chief or some
We
notable.
have
also
found that the most definite
prohibitions are elastic, since there exist methodical
systems of evasion. I shall
now
which law
is
proceed to the discussion of instances in
not broken by an act of definitely
nature, but where
it
is
legalized usage, almost itself.
illegal
confronted by a system of as
strong as traditional law
Ill
SYSTEMS OF LAW IN CONFLICT T)RIMITIVE unified
—^
law
body
is
not a homogeneous, perfectly
upon one
of rules, based
developed into a consistent system. So
principle
much we know
already from our previous survey of legal facts in the
The law
Trobriand Islands.
on the contrary
of a
of these natives consists
number of more
or less independent
Each
systems, only partially adjusted to one another.
—matriarchy, father-right, the law of marriage, the prerogatives and duties of a chief and so on—has
of these
a certain trespass
field
beyond
completely its
its
own, but
legitimate boundaries.
in a state of tense equilibrium with
outbreak.
between
The study
of the
legal principles,
mechanism
can also
it
This results
an occasional
of such conflicts
whether overt or masked,
extremely instructive and
it
reveals to us
nature of the social fabric in a primitive tribe. therefore
now
proceed
to
the
is
the very
description
I shall
of
one
or two occurrences and then to their analysis. I
shall
describe
first
illustrates the conflict
law, Mother-right,
a
dramatic
event
which
between the main principle of
and one
of the strongest sentiments,
paternal love, round which there cluster
many
usages,
CRIME AND PUNISHMENT tolerated
by custom, though
in reality
101
working against
the law.
The two
most sharply
are focussed
his sister's son
matrilineal
and
nephew
is
is
man
in the relation of a
own son
to his
and
;
legally
not related to his father, and the only bond sociological status of marriage with the mother.
Yet
in the reality of actual life the father is
to his
legal
His own son on the
offices.
not regarded as a kinsman
more attached
to
His
respectively.
kinsman and the
his nearest
heir to all his dignities
other hand
and Father-love
principles Mother-right
own son than
he
is
is
the
1
much
to his nephew.
Between father and son there obtains invariably friend-
and personal attachment
ship
nephew not infrequently the marred by the
is
any
;
between uncle and
ideal of perfect solidarity
and suspicions inherent
rivalries
in
relationship of succession.
Thus the powerful
legal
associated with a rather love,
much
less
ruling of the law
is
backed by a strong
In the case of a chief whose power
the
is
weak sentiment, while Father-
important in law,
personal feeling. considerable,
system of Mother-right
personal
influence
and the position
is
outweighs the
of the son
is
as strong
as that of the nephew.
That
was the
case
Omarakana, the residence 1
Cf.
The
in
iv,
No.
capital
village
of the principal chief,
Father in Primitive
published in Psyche, vol.
the
2.
Psychology
(1926),
of
whose
originally
CRIME AND CUSTOM
102
power extends over the whole
many
reaches all
archipelagoes,
over the eastern end of
district,
whose influence
and whose fame
New
Guinea.
is
spread
soon found
I
out that there was a standing feud between his sons
and nephews, a feud which assumed a son
Namwana Guya'u and
form
really acute
between his favourite
in the ever recurrent quarrels
his second eldest
nephew
Mitakata.
The
outbreak
final
inflicted
a
serious
came when the
injury
on
in
a
official
of
Mitakata, the nephew, was in fact con-
the district.
victed and put to prison for a
When
son
chief's
nephew
government
before the resident
litigation
the
month
or so.
the news of this reached the village, the short
among the partisans of Namwana Guya'u was followed by a panic, for everyone felt that things had come to a crisis. The chief shut himself up in his exultation
personal hut,
full
of
evil
sequences for his favourite, rashly
and
forebodings of the con-
who was
in outrage of tribal
felt
to
law and
have acted
feeling.
The
kinsmen of the imprisoned young heir to chieftainship were boiling with suppressed anger and indignation.
As night
fell,
silent supper,
the subdued village settled
each family over
was nobody on the
central place
its solitary
down
to a
meal. There
窶年amwana Guya'u was
not to be seen, the chief To'uluwa hid in his hut, most of his wives
and
their families also
remained indoors.
Suddenly a loud voice rang out across the
silent village.
—
CRIME AND PUNISHMENT
103
Bagido'u, the heir apparent, and eldest brother of the
imprisoned man, standing before his hut, spoke out, addressing the offender of his family "
Namwana Guya'u, you are
:
a cause of trouble. We,
the Tabalu of Omarakana, allowed you to stay here, to live
among
you ate
You had
us.
of our food,
plenty of food in Omarakana,
you partook
us as a tribute and of the
You
canoe.
You
fish.
a hut on
built
of the pigs
our
have done us harm. You have told in prison. is
We
our village
We
sailed in our
Now you
soil.
Mitakata
lies.
do not want you to stay here.
You
!
!
We
chase
is
This
Go away
are a stranger here.
away
you
chase
brought to
you
out
!
of
Omarakana." These words were uttered in a loud piercing voice, trembling with strong emotion, each short sentence
spoken after a pause, each hurled across the
Namwana Guya'u sister of
like
an individual
empty space
to
missile,
the hut
sat brooding. After that the
where
younger
Mitakata also arose and spoke, and then a
young man, one
of the maternal nephews.
were almost the same as in the
Their words
speech, the burden
first
being the formula of chasing away, the yoba.
The
speeches were received in deep silence. Nothing stirred in the village. But, before the night
Guya'u had
and
left
Omarakana
settled in his
whence
his
own
was over, Namwana
for ever.
village, in
He had gone over
Osapola the village
mother came, a few miles
distant.
For weeks
—
CRIME AND CUSTOM
104 his
—
mother and
sister
wailed for him with the loud
The
lamentations of mourning for the dead.
chief
remained for three days in his hut, and when he came out looked older and broken up by
All his
grief.
personal interest and affection were on the side of his
Yet he could do nothing
favourite son, of course.
His kinsmen had acted in complete
to help him.
accordance with their rights and, according to tribal law, he could not possibly dissociate himself from them.
No power could change Go away (bukula),
the decree of
'
'
'
we
chase
exile.
thee
Once the
away
(kayabaim) were pronounced, the man had to go. ,
'
These
words, very rarely uttered in dead earnest, have a
binding force and almost ritual power when pronounced
by the
citizens of a place against a resident outsider.
man who would
try
to
A
brave the dreadful insult
involved in them and remain in spite of them, would be
dishonoured for ever. In
fact,
anything but immediate
compliance with a ritual request
unthinkable for a
is
Trobriand Islander.
The and
chief's
lasting.
resentment against his kinsmen was deep
At
For a year or
first
so,
he would not even speak to them.
not one of them dared to ask to be
taken on overseas expeditions by him, although they
were fully entitled to this in 1917,
when
I
privilege.
returned to the Trobriands,
Guya'u was still resident in the other aloof
from
Two
his father's kinsmen,
village
years later
Namwana
and keeping
though he frequently
OQ
Cj
ft
X <u
T3
G 3
o in to
s ^ a o £
<i>
O
C
W <-M
^
w
3
â&#x20AC;&#x201D;
CRIME AND PUNISHMENT paid
on
visits to
Omarakana
his father, especially
in order to
refused to
it
after the expulsion.
" She wailed
:
The
and died."
eat,
be in attendance
when To'uluwa went abroad.
The mother had died within a year As the natives described
105
and wailed,
relations
between
the two main enemies were completely broken and
Mitakata, the young chieftain
had sent away
Namwana
clan as
whole
The which
his wife
who had been imprisoned,
who belonged
to the
Guya'u. There was a deep
same subrift
in the
social life of Kiriwina.
incident I
was one
of the
have ever witnessed
described
it
at length, as
of Mother-right, of the
passions which
work
it
most dramatic events
in the Trobriands.
I
have
contains a clear illustration
power
of tribal
in spite of
law and
of the
it.
The case though exceptionally dramatic and telling
by no means anomalous.
is
In every village where there is
a chief of high rank, an influential notable or a powerful sorcerer,
which
he favours his sons and allows them privileges,
are, strictly
speaking, not theirs.
produces no antagonisms within
when both son and nephew Kayla'i,
the
Often this
community
are moderate
and
tactful.
the son of M'tabalu, the recently deceased
on in
chief of highest
rank of Kasanai,
village, carries
on most of the communal magic and
is
on excellent terms with
lives
his father's
his father's successor.
In
the cluster of villages of Sinaketa, where there reside several chiefs of high rank,
some
of the son-favourites
CRIME AND CUSTOM
106
are good friends with the rightful heirs, hostility to
some
in
open
them.
In Kavataria, the village adjoining the Mission and
the Government Station, the
chief's
last
Dayboy a, has completely ousted the supported
in
worked
naturally
by
this
for
European
greater force
backing
it
by the paternal
told for
latula guya'u,
the chief's
practical jokes.
standard type,
a
is
is
of institutions, with
is
which we
Among
the
and
it
father's
tendency to do
all
exists,
the nephew's expense.
And
shows
the
marked.
cultural depth
embedded
in a
shall presently
people
rank, the opposition between Mother-right also
â&#x20AC;&#x201D;but
clearly
and
it
sometimes the
hero
is
as to the age
the fact that
acquainted.
is
contending
the
But most convincing
love
is
kukwanebu, where
the
son,
man,
expressed in the
It is
In serious myths, he
sometimes
of the conflict,
become
on with
principle, because of the
opposition of the two principles
number
carried
pampered, pretentious, often the butt of
arrogant,
villain,
amusement,
which
But the
inevitably receives from the white
as old as mythological tradition. stories
influence,
more acute nowadays and
conflict,
masters,
real
claims.
patrilineal
one
son,
of
low
and Father-
itself
in
the
he can for his son, at again after the father's
death the son has to return to the heirs practically
all
the benefits and possessions received during the father's lifetime.
This
naturally
leads
to
a good deal
of
CRIME AND PUNISHMENT discontent,
friction,
and
107
methods
round-about
of
arriving at a satisfactory settlement.
We
are, then,
once more face to face with the dis-
crepancy between the ideal of law and
its realization,
between the orthodox version and the practice of actual
life.
We
have already met with
it
in
exogamy,
in the system of counter-magic, in the relation between
sorcery and law, and, indeed, in the elasticity of
the rules of civil law.
foundations
of
Here, however,
the tribal
we
constitution
all
find the very
challenged,
indeed systematically flouted by a tendency entirely incompatible with
it.
Mother-right as
we know
is
the
most important and the most comprehensive principle of law, underlying all their It rules
that kinship has to be counted through females
only and that line.
customs and institutions.
Thus
it
all social
privileges follow the maternal
excludes the legal validity of a direct
bodily tie between father and child and of any filiation in virtue of this tie. 1
1
With
all this,
the father loves the
The natives are ignorant of the fact of physiological fatherhood, I have shown in op. cit., The Father in Primitive Psychology,
and, as
1926, have a supernatural theory of the causes of birth. There is no physical continuity between the male and the children of his wife. Yet the father loves his child even from birth to the extent at least to which the normal European father does. Since this cannot be due to any ideas that they are his offspring, this must be due to the outcome of some innate tendency in the human species, on the part of the male to feel attached to the children born by a woman with whom he is mated, has been living permanently and has kept watch over during her pregnancy.
â&#x20AC;&#x201D;
This appears to
me
the only plausible explanation of the
'
voice
—
CRIME AND CUSTOM
io8
child invariably
and
recognition in law
;
this sentiment finds a limited
the husband has the right and duty
to act as a guardian to his wife's children This, of course,
is
till
puberty.
the only line which law can possibly
take in a culture with patrilocal marriage. Since small children cannot be severed from the mother, since she
has to be with her husband, often at a distance from her
own
people, since
she and her children need a male
—the
guardian and protector on the necessarily
fulfils this role
husband
spot
and he does
it
by
strict
and
orthodox law. The same law, however, orders the boy not
the
marriage to
move
girl,
who remains with
the
parents
till
—to leave the father's house at puberty and to his mother's
community and pass
tutelage of his maternal uncle.
This,
into the
on the whole,
runs counter to the wishes of the father, of the son and of the latter's uncle
—the
three
men
the result that there has grown a
concerned, with
number
of usages,
tending to prolong paternal authority and to establish
an additional bond between father and law declares that the son that in his
village,
(tomakava)
is
son.
citizen of the
father's
he
is
The
maternal
but a stranger
—usage allows him to remain there
enjoy most of the privileges of citizenship. of blood
'
which speaks in
societies
strict
and to For
ignorant of fatherhood
as
which makes a father love his physiologically own child as well as one born through adultery as long as he does not know of it. The tendency is of the greatest use to the species.
well
as those that are emphatically patriarchal,
—
CRIME AND PUNISHMENT
109
ceremonial purposes, in a funeral or mourning per-
formance, in a feast and as a rule in side
by
of nine-tenths of all the pursuits
he
is
he
fight,
stand
will
side with his maternal uncle. In daily execution
bound
and
interests of life
to his father.
The usage
of keeping the son after puberty, often
after marriage, is a regular institution definite
arrangements to meet
and
strict rules
it, it is
there exist
:
done according to
procedure, which
definite
make
the
usage anything but clandestine and irregular. There first
is
the accredited pretext that the son remains there
to be able better to
fill
which
his father's yam-house,
he does in the name of his mother's brother and as his successor.
In the case of a chief again there are certain
offices,
considered to be most appropriately
chief's
own
a house on
son.
When
filled
his father's site,
by the
he builds
this latter marries
near the father's
own
dwelling.
The son naturally has
make gardens and father gives him a few own lands, gives him a
fore
to live
baleko
eat,
is
rule,
nets
which by right he should keep is
and other
the father goes further.
allows his son certain privileges and gives
his heirs. It
till
him
importance in the
tools,
As a
The
(garden plots) from his
â&#x20AC;&#x201D;hunting of no â&#x20AC;&#x201D;equips him with
fishing tackle.
he must there-
place in his canoe, grants
rights of fishing
Trobriands
and
carry on other pursuits.
him
He
presents,
he hands them on to
true that he will give such privileges
and
CRIME AND CUSTOM
no
when they
presents to his heirs during his life-time, solicit it
by a payment
But then
refuse the deal.
nephew has Kula
substantially
rights, heirlooms, or
ceremonies
;
He
called pokala.
'
cannot even
his
younger brother or his
to
pay
mastership
magic,
land,
for
in dances
'
and
even though they belong to him by right
and he would inherit them usage allows the
in
any
case.
Now established
man to give such valuables or privileges So that here the usage,
to the son free of charge.
established but non-legal, not only takes great liberties
with the law, but adds insult to injury by granting the usurper
considerable
advantages
over
the
rightful
owner.
The most important temporary father-line is
is
by
arrangement
smuggled into Mother-right
the institution of cross-cousin marriage.
who has
the Trobriands
which a
A man
in
a son and whose sister gives
birth to a girl child has the right to ask that this infant
be betrothed to his son. Thus his grandchildren of his
own
kin,
and
his son will
be
become the brother-in-
law of the heir to chieftainship. This latter fore,
will
will,
there-
be under an obligation to supply the son's house-
hold with food and in general to be a helpmate to his brother-in-law and protector of
Thus the very man on whose to encroach
made
is
sister's
it
the
as his
own
Trobriands
family.
interest the son is likely
prevented from resenting
to regard
marriage in
his
it
privilege. is
and, indeed, Cross-cousin
an institution by
CRIME AND PUNISHMENT which a
man
in
can secure for his son a definite though
remain for
roundabout right to
community,
an
through
life
in the father's
exceptional
marriage, and enjoy almost
matrilocal
the privileges of
all
full
citizenship.
Thus round the sentiment crystallizes a
number
of
Father-love
there
of established usages, sanctioned
by tradition and regarded
as the
most natural course by
the community. Yet they are contrary to strict law or involve exceptional and anomalous proceeding such as matrilocal marriage. in the
name
If
opposed and protested against
of the law, they
are on record,
when the
his father's niece,
had
must give way
son, even
to leave the
to
it.
Cases
though married to
community. And not
infrequently the heirs put a stop to their uncle's illegal generosity,
by demanding with pokala what he
is
about to give to his son. But any such opposition gives offence to the frictions,
and
man is
in power, provokes hostilities
resorted to only in extreme cases.
and
IV
THE FACTORS OF SOCIAL COHESION
A
IN
PRIMITIVE TRIBE
TN
and
analysing the clash between Mother-right Father-love,
we have
focussed our attention on the
personal relations between the man, his son and his
nephew respectively. But the problem is
also that of the
unity of the clan. For the group of two formed by the
man in power
(whether chief, notable, village headman,
or sorcerer) and his heir matrilineal
clan.
The
is
and
since
we
is '
',
also that it will
is in
It
of its
is
fissured, that
and antagonisms between the axiom that the clan
But the
'
clan-dogma
'
or
to use Dr. Lowie's apposite expression,
not without
shown that
no greater than that
we cannot accept
a perfectly welded unit.
sib-dogma
is
and
find that this core
there are normally tensions
the two men,
very core of the homogeneity,
unity,
solidarity of the clan can be core,
the
its
foundations, and though
in its very nucleus the clan
it is
is
we have split,
and
not homogeneous as regards exogamy,
be good to show exactly
how much
truth there
the contention of clan unity.
may
be
stated
at
once
that
here,
again,
Anthropology has taken over the orthodox native
CRIME AND PUNISHMENT
The
life.
as
position
at
fiction
the
principle
matters, and applying
native
divides
it
in
face
kinsmen
calls
related,
doctrine then
is
human
(veyola),
beings
matter
in
into tie
calls strangers (tomakava).
which
',
legal
those
whom
and those who are not thus
combined with
principle of Kinship
tribal
to its furthest consequences,
all
and whom he
of
Mother-right
kinship
of
connected with himself by the matrilineal
he
its
this
Accepting
clear.
exclusive
realities
native law
of
and
consistent
the
legal
the sociological
for
ideal
legal
their
and has been thus duped by mistaking the
value,
is
rather
or
doctrine
113
the
This
classificatory
'
fully governs only the
vocabulary, but to a limited extent also influences legal relations.
Both Mother-right and the
classificatory
principle
further
with
the totemic
are
system, by which
all
associated
human
beings
fall
into four clans,
subdivided further into an irregular number of sub-
A man
clans.
or
woman
is
a
Lukuba,
Malasi,
Lukwasisiga, or Lukulabuta, of such and such subclan,
and
this totemic identity is as fixed
as sex, colour of skin, or size of
body
cease with death, the spirit remaining
has been, and being already
it
of a clan
ship in sub-clan means a
of citizenship
common
to
lands
does not
'
spirit-child
'
and sub-clan. Member-
common
kinship, unity title
it
;
definite
what the man
existed before birth, the
member
and
ancestress, unity of
in a local
community,
and co-operation
in
many
CRIME AND CUSTOM
ii4
economic and in
implies the fact of
common
common
clan
Legally
it
and sub-clan name,
responsibilities in vendetta (lugwa), the rule of
exogamy, in
ceremonial activities.
all
finally the fiction of
an overweening
interest
one another's welfare, so that by a death the sub-
clan
first
bereft
and to some extent the clan are considered
and the whole mourning
tuned to this
ritual is
traditional view.
The unity
of the sub-clan
however, expressed most tangibly in
is,
of the clan
the great festive distributions
totemic groups play a
Thus there
give and take.
unity
game
of interests,
in
(sagali),
is
more
which the
members
a multiple and a real
and
necessarily
strongly emphasized in
many
some
and the
of a sub-clan
component sub-clans into a clan and very
still
of ceremonially-economic
activities
feelings, uniting the
and
this
fact is
institutions,
in
mythology, in vocabulary and in the current sayings
and
maxims.
traditional
But there
also the other side to the picture, of
is
which we have had
we must ideas
clear indications already,
concisely formulate.
about
First of
totemic
kinship,
all,
division,
and
this
though
all
unity
of
substance, social duties, etc., tend to emphasize the '
clan
While
dogma in
nature a
',
not
all
the sentiments follow this lead.
any contest of
man
social, political, or
ceremonial
through ambition, pride, and patriotism
invariably sides with his matrilineal kindred, softer feelings,
loving
friendship,
attachments
make him
CRIME AND PUNISHMENT often neglect clan for wife, children,
ordinary situations of
and
115
friends, in the
Linguistically, the
life.
term
veyogu (my kinsman) has an emotional colouring of cold duty
my
and
pride, the
on
sweetheart),
distinctly
death
term lubaygu (my friend and
the
other
hand,
warmer, more intimate tone.
possesses
a
In their after
the ties of love, conjugal attachment
beliefs, too,
â&#x20AC;&#x201D;
and friendship are made
in a less
orthodox but more
â&#x20AC;&#x201D;to endure into the
personal belief
spirit world,
even
as totemic identity endures.
As to the
on the example
in detail,
elasticity, evasion,
matters as
of
and breach there
we know
co-operation
we have seen exogamy, how much
definite duties of the clan,
suffers
is.
already, the exclusiveness of clan
a serious leakage through the
father's tendency to give to his son
into clan enterprises.
out but seldom
In economic
Lugwa
and to take him
(the vendetta) is carried
the payment of lula (peace-making
:
price) is again a traditional
form of compensation
really of evasion of the sterner duty.
the father or the
widow
is
for,
In sentiment,
often far more keen on
avenging the murdered one's death than his kinsmen are.
On
all
occasions
when the
clan acts
economic unit in ceremonial distributions,
homogeneous only with regard to other strict
accounts
are
kept
it
clans.
as
one
remains Within,
between the component
sub-clans and within the sub-clan between individuals.
Thus here again the unity
exists
on one
side,
but
^J
CRIME AND CUSTOM
n6 it
is
combined on the other with a thorough-going with
differentiation,
and
self-interests,
watch over the particular
strict
last
but not least with a thoroughly
business-like spirit not devoid of suspicion, jealousy
and mean If
practices.
a concrete survey of the personal relations within
the sub-clan were taken, the strained and distinctly
unfriendly attitude between maternal uncle and nephew as
we saw
in
it
Omarakana, would be by no means
infrequently found. Between brothers sometimes there exists real friendship, as
his brothers,
was the case with Mitakata and
and with Namwana Guya'u and
his.
On
the other hand, strong hatreds and acts of violence and hostility are I shall
on record both in legend and actual
give a concrete
example
of fatal
life.
disharmony
within what should be the nucleus of a clan
:
a group
of brothers.
In a village quite close to where
whom, the
headman
of
The youngest brother used infirmity
was camping
there lived three brothers, the eldest
at that time, of
I
the
clan,
was
blind.
to take advantage of this
and to gather the betel-nut from the palms
even before
it
was properly
thus deprived of his share.
ripe.
The blind man was
One day when he discovered
again that he was cheated of his due, he broke into a passion
of
fury,
seized
an
axe,
and entering
brother's house in the dark, he succeeded in
him. The wounded
man
his
wounding
escaped and took refuge in the
CRIME AND PUNISHMENT This
third brother's house.
117
indignant at the
one,
outrage done to the youngest brother, took a spear
and
killed the blind
murderer was put into
for the
ending,
year by the magistrate.
my
all
one
â&#x20AC;&#x201D;on
this
would have
suicide.
In this case
we meet
the two standard criminal acts,
and murder, combined and
considerable part in the is classified
life
will
of the
be well to make
Trobriand natives.
under two concepts
which word
to catch hold),
it
Neither delict plays any
a brief digression on them.
Theft
â&#x20AC;&#x201D;he
prosaic for
jail
In the olden days
informants were unanimous
committed
theft
The tragedy had a
man.
is
kwapatu
:
(lit.
applied to unlawful
appropriation of objects of personal use, implements,
and valuables to
theft
yam-houses,
special word,
applied
used
also
when
pigs
fowl
or
a
greater
despicable.
nuisance,
There
is
stealing
of
food
in
it,
as
to
steal
humiliation conceivable. is
is
it,
and an admission by act that one has been
such straits
valuables
is
no greater disgrace to a
Trobriander than to be without food, in need of to beg for
are
While the thieving of personal objects
to be
more
and vaylau, a
vegetable food either from gardens or
of
purloined. felt
;
it
entails
the greatest
Again, since the theft of
almost out of question, because they are
earmarked, 1 thieving of personal objects cannot
all
1
Cf.
the writer's op.
cit.,
Argonauts of
the
Western Pacific.
CRIME AND CUSTOM
n8 inflict
any
penalties in either case ridicule
on the
serious loss
would consist
which covers the
my
of theft brought to
feeble-minded
people,
Depriving the white
The
rightful owner.
shame and
in the
culprit and, indeed, all cases
by
notice were perpetrated social
outcasts,
or
minors.
man of his superfluous possessions,
such as trade goods, tinned food or tobacco, which he keeps locked in a niggardly fashion without using, in a class
by
and
itself,
is
naturally not considered
is
a breach of law, morality or gentlemanly manners.
A
murder
is
from
apart
an extremely rare occurrence. the
occurred during
case
my
just
residence
described,
In
fact,
only
one
the spearing of a
:
notorious sorcerer at night, while he was surreptitiously
approaching the sick
village.
man, the victim
guard
This was done in defence of the
of the sorcerer,
who keep watch during
by one of the armed the night on such
occasions.
A
few cases are told of
killing as
punishment
for
adultery caught in flagranti, insults to people of high rank, brawls
and skirmishes. In
during regular war.
all
Also, of course, killing
cases
when a man
by people
of another sub-clan, there
of talion.
This, in theory,
is
is
is
killed
the obligation
absolute, in practice
it is
regarded obligatory only in cases of a male adult of
rank or importance superfluous
;
and even then
it is
considered
when the deceased had met his fate for a own. In other cases, when vendetta
fault clearly his
CRIME AND PUNISHMENT is
demanded by the honour
obviously
it is still
(lula).
119
of the sub-clan,
evaded by the substitution of blood-money
This was a regular institution in the making of
peace after war, when a compensation was given to the other side for every one killed and wounded.
But
when murder or homicide were committed, a would
also lula
from the duty of talion
relieve the survivors
(lugwa).
And that
brings us back to the problem of^lan unity.
All the facts
the clan
quoted above show that the unity of
neither a
is
mere
fairy tale,
invented by
Anthropology, nor yet the one and only real principle of savage law, the
The actual understood,
key to
all its riddles
state of affairs, fully seen is
very complex,
of real contradictions of the Ideal
and
its
and
full of
that
rigid law. it
â&#x20AC;&#x201D;in
their professions,
and patterns
of conflicts
all
in
human tendencies
native doctrine, that
of conduct
while,
solidarity,
due to the play
of the clan is a legal fiction in
and statements,
of all other interests
and thoroughly
actualization, to the imperfect
The unity
demands
difficulties.
apparent as well as
adjustment between the spontaneous
and
and
â&#x20AC;&#x201D;an
and fact,
is
in all
sayings, overt rules
absolute subordination
ties to
this
the claims of clan
solidarity is
almost
constantly sinned against and practically non-existent in the daily
run of ordinary
life.
On
the other hand, at
certain times, in the ceremonial phases of native
above
all,
life
the clan unity dominates everything and in
CRIME AND CUSTOM
120
cases of overt clash
personal
and open challenge
and
considerations
it will
failings
overrule
which
under
ordinary conditions would certainly determine individual's conduct.
native
There
and most
to the question,
as well as of
life,
are, therefore,
two
the sides
of the important events of
their institutions, customs,
and tendencies cannot be properly understood without the realization of both sides and of their interaction. It
fixed
is
not
difficult
upon one
why Anthropology question, why it presented
to see also,
side of the
the rigid but fictitious doctrine of native law as the
For
whole truth. lectual,
overt,
this doctrine represents the intel-
fully
conventionalized aspect of the
native attitude, the one set into clear statements, into definite legal formulae.
When
the native
is
asked what
he would do in such and such a case, he answers what
he should do
pologist,
law.
;
he lays down the pattern of best possible
When
conduct. it
costs
he acts as informant to a field-anthro-
him nothing
to retail the Ideal of the
His sentiments, his propensities, his
bias,
his
self-indulgences as well as tolerance of others' lapses,
he reserves for his behaviour in
real
life.
And even
then, though he acts thus, he would be unwilling to
admit often even to himself, that he ever acts below the standard of law.
The other
side,
the natural,
impulsive code of conduct, the evasions, the com-
promises and non-legal usages are revealed only to the field- worker,
who
observes native
life directly, registers
'
CRIME AND PUNISHMENT facts, lives at
such close quarters with his
as to understand not only their language
121 '
material
and
their
statements, but also the hidden motives of behaviour,
and the hardly ever formulated spontaneous conduct.
Hearsay
'
Anthropology
'
line of
constantly
is
exposed to the danger of ignoring the seamy side of savage law.
This
and
tion, exists
is
side, it
can be said without exaggera-
tolerated as long as
faced, put into words, openly stated
it is
not squarely
and thus challenged.
This accounts perhaps for the old theory of the
trammelled savage
manners are this version
'
and
irregularities
which by no means conforms to
while they ignored the structure of native
strict law,
it
For the authorities who gave us
well the intricacies
of native behaviour
legal
doctrine.
without
The modern
much
field- worker
constructs
trouble from his native informant's
statements, but he remains ignorant of the blurs
by human nature on
this theoretical outline.
he has re-shaped the savage into a model of
Truth
is
un-
whose customs are none and whose
beastly.
knew
'
made
Hence legality.
a combination of both versions and our
knowledge of it reveals the old as well as the new figment as futile simplifications of a very complicated state of things.
This, like everything else in is
human
cultural reality
not a consistent logical scheme, but rather a seething
mixture of conflicting principles. clash of matriliny
and paternal
Among
interest
is
these the
probably the
CRIME AND
122
CUSTOM
most important. The discrepancy between the totemic clan solidarity on the one hand,
and the bonds
family or dictates of self-interest comes next.
of
The
struggle of the hereditary principle of rank with the
personal influences of prowess, economic success and
magical craft
is
also of importance. Sorcery as a personal
instrument of power deserves special mention, for the sorcerer
often a dreaded competitor of the chief or
is
headman.
If
space permitted I could give examples of
other conflicts of a more concrete, accidental nature
;
the historically ascertainable gradual spread of political
power
of the
Tabalu sub-clan
which we can see the principle its
(of
of
the Malasi clan), in
rank override beyond
legitimate field the law of strictly local citizenship,
based on mythological claims and matrilineal succession.
Or
might describe the secular contest between
else I
the same Tabalu and the Toliwaga sub-clan
the
(of
Lukwasisiga clan), in which the former have on their side rank,
a
latter
qualities
prestige
stronger
and established power and the
The most important
fact
war-like
organization,
military
and greater success
in fighting.
from our point
this struggle of social principles
is
that
it
of
view in
forces us to
re-cast completely the traditional conception of
and order
now '
in savage communities.
definitely the idea of
cake
'
of
an
law
We have to abandon
inert, solid
'
crust
'
or
custom rigidly pressing from outside upon the
whole surface of tribal
life.
Law and
order arise out
,of
CRIME AND PUNISHMENT
123
the very processes which they govern. But they are not rigid,
nor due to any inertia or permanent mould. They
obtain on the contrary as the result of a constant struggle not merely of
human
passions against the law,
but of legal principles with one another. however,
not a free fight
is
:
it is
The
struggle,
subject to definite
conditions, can take place only within certain limits
and only on the condition that surface of publicity.
it
remains under the
Once an open challenge has been
entered, the precedence of strict law over legalized
usage or over an encroaching principle of law
and the orthodox hierarchy
established
is
of legal systems
controls the issue.
For as we have seen the strict
conflict takes place
law and legalized usage, and
it is
between
possible because
the former has the strength of more definite tradition
behind
it,
while the latter draws force from personal
inclinations
and actual power. There
exist thus within
the body of law not only different types such as quasicivil
and
quasi-criminal,
or
the law of economic
transactions, of political relations, etc., but there can be
distinguished degrees of orthodoxy, stringency, validity, placing the rules into a hierarchy
main law
of Mother-right, totemism,
to the clandestine evasions of defying
and the
and
from the
and rank down
traditional
means
law and abetting crime.
Herewith our survey of law and
legal institutions in
the Trobriand Islands comes to an end.
In
its
course
\s
CRIME AND CUSTOM
124
we have reached
number
a
existence of positive tions,
and
of conclusions
elastic
and yet binding obliga-
which correspond to the
developed cultures public enactment obligations,
about the
law in more
civil
about the influence of reciprocity,
;
and the systematic incidence
of such
which supply their main binding forces
;
about the negative rulings of law, the tribal prohibitions
and taboos, which we have found
as
adaptable as the positive rules although
We were
different function. classification
and
elastic
fulfilling
also able to suggest a
of the rules of
a
new
custom and tradition
;
a revised definition of law as a special class of customary rules
and to indicate further sub-divisions within the
body
of
law
between
quasi-civil
a distinction of
In
itself.
this, besides
the main division
and quasi-criminal we found that
must be made between the various grades
law which can be arranged into a hierarchy from the
statutes
of
usages
tolerated
methods
main legitimate
down
together form the
and
magical
evasions
of flouting the law.
criminate between a
right
to
number
body
Father-love,
influence,
We
for
is
our
to dis-
which
organization
which
no need to go further into conclusions
traditional
had
law such as Mother-
political
into conflict, arrive at compromises
There
and also
legally
of distinct systems
of tribal
.systems
through
law,
at
times
and enter
and re-adjustments. detail
about
all this,
were both substantiated with
evidence and discussed theoretically at length.
CRIME AND PUNISHMENT But
it
is
worth while to
realize
125
once more that
throughout our discussion we found the real problem not in bald enumeration of jules, but in the ways and
means by which these
we found
are carried out.
the study of the
life
Most instructive
situations
which
call for
is
handled by
the people concerned, the reaction of the
community
a given rule, the manner in which this
at large, the consequences of fulfilment or neglect.^ All this,
which could be called the cultural-context of a
primitive system of rules
more
so,
than the mere
is
equally important,
recital of
if
not
a fictitious native
corpus juris codified into the ethnographer's note-book
and answer,
in the hearsay
demanding a new
line of anthro-
as the result of question
method
With
of field-work. this
we
are
pological field-work: of the rules of
the study by direct observation
custom as they function
in actual
Such study reveals that the commandments
of law
life.
and
custom are always organically connected and not isolated
;
that their very nature consists in the
many
tentacles which they throw out into the context of social /life
;
that they only exist in the chain of social trans-
actions in which they are but a link.
I
maintain that
the staccato manner in which most accounts of tribal life
are given
and that
it
character of organization.
is
is
the result of imperfect information,
in fact incompatible with the general
human
A
life
and the exigencies
native tribe
of social
bound by a code
of
â&#x20AC;&#x201D;
CRIME AND CUSTOM
126
disconnected inorganic customs would
fall
to pieces
under our very eyes.
We
can only plead for the speedy and complete
disappearance from the records of field-work of the
piecemeal items of information, of customs,
beliefs,
f
\ rules of (
flat
conduct floating in the
air,
or rather leading a
existence on paper with the third-dimension, that
With
completely lacking.
K)f life,
arguments of Anthropology
will
this the theoretical
be able to drop the
lengthy litanies of threaded statement, which anthropologists feel I
and
mean by
ment such nacians
silly,
and the savage look ridiculous.
this the long
enumerations of bald state-
example, "
as, for
make us
when a man meets
Among
the
Brobdig-
his mother-in-law, the
two
abuse each other and each retires with a black eye " "
When
away and sometimes the bear Caledonia bottle
;
a Brodiag encounters a Polar bear he runs
when a
by the
follows "
forth.
road-side he empties
ments
may
(I
"in old
native accidentally finds a whiskey it
at one gulp, after
which he proceeds immediately to look
and so
;
am
quoting from
" for another
memory so
the state-
be only approximate, though they sound
plausible.) It is easy,
but is
it is
however, to poke fun at the litany-method,
the field-worker
who is really responsible. There
hardly any record in which the majority of state-
ments are given as they occur
in actuality
they should or are said to occur.
Many
and not as
of the earlier
CRIME AND PUNISHMENT
127
accounts were written to startle, to amuse, to be facetious at the expense of the savage,
were turned and
more easy now to be
it is
To
the anthropologist's expense.
what mattered \
not
really
its reality.
through an interpreter
method can again tions,
facetious at
the old recorders
was the queerness
The modern
of the custom,
anthropologist, working
the question and answer
b}^
only opinions, generaliza-
collect
and bald statements. He gives us no
he has never seen
The touch
it.
the tables
till
which hangs
of ridicule
about most writings of anthropology
reality, for
due to the
is
artificial
flavour of a statement torn out of its
context.
The true problem
life
submits to rules
problem
is
â&#x20AC;&#x201D;
it
is
not to study
life-
how human
simply does not
;
the real
how the rules become adapted to life.
As regards our
gains the analysis of
theoretical
Trobriand law has given us a clear view of the forces of cohesion in a primitive society, based
on solidarity
within the group as well as on the appreciation of personal interest.
sentiment
',
'
The opposition
joint personality
to civilized individualism
of primitive
and
'
'
and
artificial
however primitive or
civilized,
results of this
Although
I
descriptions
have
and statements
No
society,
can be based on a
memoir point confined
'
of selfish ends
futile.
figment or on a pathological growth on
The
group-
clan absorption
and pursuit
appear to us altogether
'
myself
of fact,
human
to one
nature.
more moral.
principally
some
to
of these led
CRIME AND CUSTOM
128 naturally to a
more general
theoretical analysis
which
yielded certain explanations of the facts discussed. Yet
was
in all this not once
it
necessary to resort to any
hypotheses, to any evolutionary or historical reconstructions.
The explanations here given consisted
an analysis
of certain facts into simpler elements
and
of tracing the relations between these elements.
Or
else it
was
possible to correlate one aspect of culture
with another and to show which
by
in
scheme
either within the
is
the^f unction fulfilled
The
of culture.
relation
between Mother-right and the paternal principle and their partial conflict accounts, as series of
marriage,
we have
compromise formations such as cross-cousin types
and
inheritance
of
transactions, the typical constellation
and maternal system.
1
seen, for a
and certain features
uncle,
economic
of father, son, of the clan
Several characteristics of their social
life,
the
chains of reciprocal duties, the ceremonial enactment of obligations, the uniting of
a number of disparate
transactions into one relationship have been explained
by the function which they coercive forces of law. prestige, the
power
The
fulfil
relation
of sorcery,
in
supplying the
between hereditary
and the influence
of
we find them in the Trobriands by the cultural parts played by
personal achievement as
could be accounted for
each principle respectively. While remaining on strictly 1
The
relation
between Mother-right and Father-love cit., Sex and Repression in Savage
fully discussed in op.
is
more
Society.
CRIME AND PUNISHMENT empirical ground facts
ends in
and
we were
features,
which
show
they
no
to
the
means
able to account for
fulfil,
This type of
of such
There
antiquarian interest as well as the
should
not
claim
an
Man
" hypotheses non Jingo ".
as
customs
or as
room
for the
is
scientific,
exclusive
predominant sway over Anthropology. that the student of
explanation
investigation
further
level
to their historical antecedents.
former
these
and thus to explain them
excludes
evolutionary
all
their conditions as well as the
a scientific manner.
by
129
It is
but the or
even
high time
should also be able to say
INDEX Adultery, 81, 96 punishment, marks on corpse, 92, 118; 84 and child, 108 n. ;
;
Ambition, 29, 30, 32, 58, 67-68 in gardening, 36 Annie Sociologique, 41 n., 57 n. Anthropology, scientific nature, 1-2, 71-74 practical value,
;
;
1-2
Bachofen, 2
Baloma
(v. Spirits)
Bernhoft, 2
Black Magic (v. Sorcery) Blood money, 115, 119 Breach of law, Pt. II, Ch. I, et passim Brother, and sister in Trobriand murder of, law, 35-38 116-117
Conflict of principles in law, 76, 100-111, 121-123 Conformism of savages, 52 Co-operation, 18-21, 26-27
Counter-magic, 80-81 Crime, 63, 117 and punishment, Pt. II; 94, 97-99, 117-119 (v. also Criminal law) Criminal law, 56-58, 66 Cross-cousin marriage, 110-111 Cultural context in anthropological study, 125-127 Custom, automatic submission 3-4, 30, to, Pt. I, Ch. I; 50-52, 56, 63-68, 73, 122; force of, 65 rules of, 50-54 ;
;
Dual organization, 24-25 Durkheim, 4, 55, 57 n.
;
Economic 35-42
Canoe, ownership, 18-21 master and crew, 26-27 Ceremonial, display, 23, 29, 32, distribu36-37, 55, 67, 128 tion, 34, 61, 114, 115 power Chief, 46-47, 66, 76 of punishment, 89-92 and son, 101-106, 110 ;
;
;
;
Civil 33,
law among savages, 30-31,
73-74, 56-59, 63-68, 123-124 Clan, 47-49, 55, 75 unity, 112-120, 127; conflict of, ;
122 (v. also Mother-right) ;
Exogamy,
Classificatory system of relationship, 82, 113 Cohesion, forces in tribe, 1 12-120
Communism, criticized,
primitive 3,
26, 48-49, 73,
11,
concept
:
16,
and Pt.
I,
18-21, Ch. II
;
25-27, 17-21
relations, fishing,
in
;
coastal and inland, 22-23 Elasticity of law, 31, 58 European war, native view, 83 n. Evasion, of obligations, 28, 30 of results of breach of law, ;
80-81 Exchange, 22, 23, 25-27 Kula) Exhumation, 87-90 Exogamy, 77-80, 82-84
(v.
also
Father and son, strangers, 101, 107, 108 Fatherhood, ignorance of physiology of, 107-108 n. Father-love, 100-111 Feasts, 114
Fieldwork 125-127
methods,
Fishing, 17-18, 20
26-28
;
120-121,
motives
in,
INDEX its social value, 29, 117 also Ceremonial display and distribution, Fishing, Pigs) Funeral rites, 33-34, 44, 53,
Food, (v.
131
Kula, overseas trading, 25, 61, 82, 90, 104, 110
Kwapatu
Theft)
(v.
Law, primitive, and custom,
87-90, 114
30,
Reciprocity) sentiment, Group marriage, 3 solidarity, 10, 11, 42, 48, 55 (v. also Communism, 3, 4
50-54, 63 definition, 14-16, 31-32, 58-59, 67; fundamental function, 64 not all negative, 56-58 rules of, 55-74 theories of, 2-5, 9-16, 50-51, 56-58, 63-64, 73 in economics, 18-23, 26-31 in marriage, 35-38, 43-44 in
Custom, etc.) Gwara, taboo pole, 61
46-47,
;
Garden produce, 36-37 40-41 Give and take
distribution,
its
;
Gifts,
;
(v.
;
;
;
;
;
;
;
33-34 and chief, 91-92 (v. also Ideal,
religion,
Hartland, Sidney, 64, 73 n on communism, 48 on criminal law, 55-57 on primitive 50-51 categories, on ;
;
;
Civil
;
Law,
etc.)
Lowie, R. H., 13, 56, 57 Lugwa (v. Vendetta)
Lula
(v.
Blood-money)
;
tradition, 10
Hobhouse, L.
T\,
57
56,
;
on
Husband and wife, 95-97, Marriage) 75,
34, 35, 40-41,
108
(v.
also
Ideal of law and reality, 79-80, 82-84, 107-111, 120-121 Incest, 78-83
;
and Malasi
clan,
84 Insults, and suicide, 78, to chief, 92
Jurisprudence,
95-96
;
2
;
primitive,
real field, 56-59 of views, 63-68
;
Magic, 42-43, 53, 60-61 and clan incest, 80-81 criminal instrument, 81-82 (v. also ;
;
binding custom, 12
summary
Kala wabu, marks on corpse, 87-90 Kayasa, ceremonial contract, 61 Kaylasi (v. Adultery) Kaytapaku, magical protection of property, 60, 61
Kaytubutabu, magic of coco-nuts, 61 Killing as punishment, 92, 118 Kimali, erotic scratches, 88 Kinsmen, 113, 115 Kohler, 2
Kousi (v. Spirits) Kukwanebu, stories, 106
Sorcery) Mailu, gora in, 61 n. Maine, 3, 56
Manners, rules
of,
52-53
Marriage, 35-38, 75-76 within the clan, 84 (v. Husband ;
;
and
wife)
Mauss, M. Marcel, 41 n., 57 Milamila, feast for spirits, 44 with Moratorium, analogy gwara, 61 Mother-right, 75-76, 113; and father-love, 100-111, 128 Motives, in work, 26, 28-30 Mourning (v. Funeral rites) Mulukwausi flying witches, 87 Murder, 116-118 Mythology, indicative of law, 106 ,
Negative injunctions in primitive law (v. Prohibitions) Norms of conduct (v. Custom, rules)
Notes
and Queries in Anthro-
pology, 4
Obedience to law (v. Custom, automatic submission)
INDEX
132
in 67 58, in economics, 18-21, 25-29 binding religious acts, 33-34 force, Pt. I, Ch. Ill and VIII
Obligations,
;
;
;
passim Ownership,
109-110;
117-118
also Canoe)
(v.
payment
for privileges,
110, 111
Post, 2 Primitive economics, value of study, 1 Primitive mentality, 1, 51 Prohibitions, 56-57, 79, 82-83,
99 (v. also Law) Public opinion, 79-80 Punishment (v. Crime) Reciprocity, 22, 23, 34, 37, 68 Pt. I, Ch. IV, VIII, IX sanction, 53, Religion, 33-34 no part in civil law, 80 ;
;
;
66-67
(v.
corpse, 87-91 legal of chief, 91-93 ;
;
instrument of power, 122 Spirits, 44, 90 intercourse with, 84 Steinmetz, 57 Suicide, 77-79 legal aspect, 94-98 Summary of views on custom and law, 63-68 of argument, ;
;
Pigs, 82, 90
Pokala,
marks on weapon
also Spirits)
Rivers, on communism, 19-20 dual organization, 25 group sentiment, 11, 48, 49, 55, primitive law, 4 73 n.
;
124 et seq. Suvasova, breach
of
Exogamy) Symmetry of social
exogamy
(v.
structure,
24-25
Taboo, 42, 56, 61, 73, 79, 82-83, 92, 98, 99 Theft, 117-118 Thurnwald, on reciprocity, 24 Tomakava, stranger, 113 (v. Father)
Totemism, 26, 113 Tradition, conformity to, 52, 65 Trobriand Archipelago, 17
;
;
;
Sagali, feasts, 114 Sanctions for rules of conduct, 50, 53, 55, 65-68, 80 Science, philosophy of, 71-72 Self-interest, 26-27, 30, 48, 65,
67 Sex, 40, 47 n., 92 Sorcery, as legal influence, 78, 82, diagnosis of 85-86, 93-94 ;
Valuables, 61, 90, 109-110, 117 Vayla'u (v. Theft) Vendetta, 78, 97, 114, 115, 118, 119 Veyola, kinsmen, 113, 115
Yakala, public recriminations, 60 Yoba, ceremonial expulsion, 103-104 Zeitschrift
vergl.
f.
Rechts-
wissenschaft 2 ,
Printed in Great Britain by Stephen Austin S- Sons, Ltd., Hertford.
Date Due
•
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toy
We 9 •
w.244L "
OCf
6
'
983
HPR~**t
'
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L. B. Cat.
No.
1
137
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364M29 CLAPP
Mi
3 5002 00241 6522 w^ÂŤ_t_
Malinowski, Bronislaw
Crime and custom
GN 493
.
in
savage society,
M3 1926
Malinowski,
Bronislaw,
1884
1942.
Crime and custom in savage society